Helen Coonan (NSW, Liberal Party, Minister for Communications, Information Technology and the Arts) Share this | Hansard source

by leave—I move government amendments (1) to (12) on sheet PZ245, (1) to (15) and (17) to (19) on sheet QS387 and (1) on sheet QS391:

(1)    Schedule 1, item 8, page 13 (line 23), omit “concerned.”, substitute “concerned; and”.

(2)    Schedule 1, item 8, page 13 (after line 23), at the end of subsection 61AJ(4), add:

             (e)    if subparagraph (b)(ii) applies—inform the applicant accordingly.

(3)    Schedule 1, item 8, page 14 (line 5), omit “under subsection (1)”.

(4)    Schedule 1, item 8, page 14 (after line 6), at the end of section 61AJ, add:

        (9)     The ACMA must deal with applications under subsection (1) in order of receipt.

      (10)     If the ACMA receives an application under subsection (1), the ACMA must use its best endeavours to make a decision on the application within 45 days after receipt of the application.

(5)    Schedule 1, item 8, page 16 (line 26), omit “each”, substitute “any”.

(6)    Schedule 1, item 8, page 16 (after line 26), after subsection 61AN(4), insert:

    (4A)     Subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of a registered media group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of a media operation in the group if:

             (a)    the registered controller failed to comply with a notice under section 61AJ; and

             (b)    the notice related, to any extent, to the media operation.

     (4B)     Subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of a registered media group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of a media operation in the group if:

             (a)    an approval under section 61AJ was given on the basis that the ACMA was satisfied that a person other than the registered controller would, within a particular period, take action that, to any extent, relates to the media operation; and

             (b)    the person failed to take the action within that period.

     (4C)     If:

             (a)    the ACMA made any of the following decisions (the original decision) in connection with a registrable media group in relation to the licence area of a commercial radio broadcasting licence:

                   (i)    a decision to enter the media group in the Register under subsection 61AY(1) or 61AZ(1);

                  (ii)    a decision under subsection 61AZE(1) confirming the entry of the media group in the Register;

                 (iii)    a decision under section 61AZF affirming a decision under subsection 61AZE(1) to confirm the entry of the media group in the Register;

                 (iv)    a decision under section 61AZF revoking a decision under subsection 61AZE(1) to cancel the entry of the media group in the Register; and

             (b)    any of the following subparagraphs applies:

                   (i)    in the case of a decision under subsection 61AZE(1)—a person applied to the ACMA for a reconsideration of the original decision;

                  (ii)    in the case of a decision under section 61AZF—a person applied to the Administrative Appeals Tribunal for a review of the original decision;

                 (iii)    in any case—a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to the original decision; and

             (c)    the original decision was set aside or revoked; and

             (d)    after the original decision was set aside or revoked, the ACMA entered another registrable media group in relation to that licence area in the Register; and

             (e)    after that other group was entered in the Register, the Administrative Appeals Tribunal or a court made a decision the effect of which was to restore or affirm the original decision;

subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of that other group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of any media operation in that other group.

(7)    Schedule 1, item 8, page 16 (after line 29), after subsection 61AN(6), insert:

       (6A)   If:

             (a)    the ACMA gives a direction under subsection (1) in the circumstances referred to in subsection (4C); and

             (b)    subsection (8) does not apply;

the period specified in the direction must be 2 years.

(8)    Schedule 1, item 8, page 23 (after line 11), at the end of section 61AZ, add:

Register frozen while ACMA reconsideration is pending or AAT/court proceedings are pending

        (5)    If:

             (a)    the ACMA makes a decision under this Subdivision in connection with a registrable media group in relation to the licence area of a commercial radio broadcasting licence; and

             (b)    any of the following subparagraphs applies:

                   (i)    in the case of a decision under subsection 61AZE(1)—a person applies to the ACMA for a reconsideration of the decision;

                  (ii)    in the case of a decision under section 61AZF—a person applies to the Administrative Appeals Tribunal for a review of the decision;

                 (iii)    in any case—a person applies to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to the decision;

                 then:

             (c)    despite subsection (1), the ACMA must not enter any other registrable media group in relation to that licence area in the Register under that subsection during the period (the pending period) when that application has not been finalised unless the ACMA is satisfied that, assuming that the decision were not to be set aside or revoked, the coming into existence of the media group does not have the result that:

                   (i)    an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or

                  (ii)    if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and

             (d)    if the ACMA is satisfied that another registrable media group in relation to that licence area has come into existence during the pending period—subsection (3) has effect, in relation to the other registrable media group, as if the relevant notification, or the last of the relevant notifications, as the case may be, had been received on the first day after the end of the pending period.

        (6)    For the purposes of subsection (5), an application for reconsideration of a decision is taken not to have been finalised during the period of 28 days beginning on:

             (a)    if, because of the operation of subsection 61AZF(9), the decision is taken to be affirmed—the day on which the decision is taken to have been affirmed; or

             (b)    in any other case—the day on which the decision on the reconsideration is notified to the person concerned.

        (7)    For the purposes of subsection (5), if:

             (a)    a person applied to the Administrative Appeals Tribunal for a review of a decision; and

             (b)    the Administrative Appeals Tribunal makes a decision on the application;

                 the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (b) is made.

        (8)    For the purposes of subsection (5), if:

             (a)    a person applied to the Administrative Appeals Tribunal for a review of a decision; and

             (b)    the Administrative Appeals Tribunal made a decision on the application; and

             (c)    a person appeals from the decision to the Federal Court; and

             (d)    the Court makes a decision on the appeal;

                 the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (d) is made.

        (9)    For the purposes of subsection (5), if:

             (a)    a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to a decision; and

             (b)    the court makes a decision on the application;

                 the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (b) is made.

      (10)    For the purposes of subsection (5), if:

             (a)    a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to a decision; and

             (b)    the court made a decision on the application; and

             (c)    the decision became the subject of an appeal; and

             (d)    the court or another court makes a decision on the appeal; and

             (e)    the decision mentioned in paragraph (d) could be the subject of an appeal;

                 the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (d) is made.

      (11)    The regulations may provide that, in specified circumstances, an application is taken, for the purposes of subsection (5), not to have been finalised during a period ascertained in accordance with the regulations.

      (12)    The regulations may extend the 28-day period referred to in subsection (6), (7), (8), (9) or (10).

(9)    Schedule 1, item 8, page 24 (after line 34), after section 61AZC, insert:

61AZCA ACMA must deal with notifications in order of receipt

        (1)    For the purposes of sections 61AY, 61AZ, 61AZA, 61AZB and 61AZC, the ACMA must deal with notifications given, or purportedly given, under Division 6 in order of receipt.

        (2)    Subsection (1) has effect subject to subsection 61AZ(5).

(10)  Schedule 1, item 8, page 29 (line 10), after “subsection (1)”, insert “at the end of that 28-day period”.

(11)  Schedule 1, item 8, page 30 (line 20), after “subsection (5)”, insert “at the end of that 28-day period”.

(12)  Schedule 1, page 37 (before line 18), after item 18, insert:

18A At the end of section 205PA

Add:

•  The Federal Court may also grant injunctions in relation to transactions that are prohibited under Division 5A of Part 5 (which deals with media diversity).

18B Section 205Q

After “contravention of”, insert “section 61AH or”.

18C At the end of clause 2 of Schedule 1

Add:

        (5)    The following are examples of situations that, depending on the circumstances, may be relevant in determining whether a person is in a position to exercise control of 2 or more licences:

             (a)    the licensees share any or all of the following:

                   (i)    equipment;

                  (ii)    studios;

                 (iii)    other production facilities;

                 (iv)    transmission facilities;

                  (v)    human resources;

                 (vi)    other resources;

             (b)    the program content of a substantial percentage of the total number of hours of programs broadcast under one of those licences is the same as the program content of a substantial percentage of the total number of hours of programs broadcast under the other licence or licences;

             (c)    the licensees have financial relationships with each other;

             (d)    both of the following subparagraphs apply:

                   (i)    the person is in a position to exercise control of one or more of the licences;

                  (ii)    the person has a financial relationship with another person who is in a position to exercise control of the other licence or one or more of the other licences.

(1)    Schedule 1, item 8, page 7 (after line 4), after the definition of statutory control rules in section 61AA, insert:

unacceptable 3-way control situation has the meaning given by section 61AEA.

(2)    Schedule 1, item 8, page 11 (after line 6), after section 61AE, insert:

61AEA Unacceptable 3-way control situation

      For the purposes of this Division, an unacceptable 3-way control situation exists in relation to the licence area of a commercial radio broadcasting licence (the first radio licence area) if a person is in a position to exercise control of:

             (a)    a commercial television broadcasting licence, where more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and

             (b)    a commercial radio broadcasting licence, where the licence area of the commercial radio broadcasting licence is, or is the same as, the first radio licence area; and

             (c)    a newspaper that is associated with the first radio licence area.

(3)    Schedule 1, item 8, page 15 (after line 28), after Subdivision B, insert:

Subdivision BA—Prohibition of transactions that result in an unacceptable 3-way control situation coming into existence etc.

61AMA Prohibition of transactions that result in an unacceptable 3-way control situation coming into existence—offence

A person commits an offence if:

             (a)    one or more transactions take place on or after the commencement day; and

             (b)    the transactions have the result that an unacceptable 3-way control situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; and

             (c)    the person was:

                   (i)    a party to the transactions; or

                  (ii)    in a position to prevent the transactions taking place; and

             (d)    the ACMA has not approved the transactions under section 61AMC.

                 Penalty:                20,000 penalty units.

61AMB Prohibition of transactions that result in an unacceptable 3-way control situation coming into existence—civil penalty

        (1)    This section applies if:

             (a)    one or more transactions take place on or after the commencement day; and

             (b)    the transactions have the result that an unacceptable 3-way control situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; and

             (c)    the ACMA has not approved the transactions under section 61AMC.

        (2)    A person must not be:

             (a)    a party to the transactions; or

             (b)    in a position to prevent the transactions taking place.

        (3)    Subsection (2) is a civil penalty provision.

61AMC Prior approval of transactions that result in an unacceptable 3-way control situation coming into existence etc.

        (1)    A person may, before a transaction takes place that would place a person in breach of section 61AMA or 61AMB, make an application to the ACMA for an approval of the transaction.

        (2)    An application is to be made in accordance with a form approved in writing by the ACMA.

        (3)    If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

        (4)    If, after receiving an application, the ACMA is satisfied that:

             (a)    if the transaction took place, it would place a person in breach of section 61AMA or 61AMB; and

             (b)    either:

                   (i)    the applicant; or

                  (ii)    another person;

                      will take action, within a period of not longer than 12 months, to ensure that an unacceptable 3-way control situation does not exist in relation to the licence area concerned;

                 the ACMA may, by written notice given to the applicant:

             (c)    approve the transaction; and

             (d)    if subparagraph (b)(i) applies—specify a period within which action must be taken by the applicant to ensure that an unacceptable 3-way control situation does not exist in relation to the licence area concerned; and

             (e)    if subparagraph (b)(ii) applies—inform the applicant accordingly.

        (5)    The period specified in the notice must be at least one month, but not longer than 12 months.

        (6)    The ACMA may specify in a notice given to an applicant the action that the ACMA considers the applicant must take to ensure that an unacceptable 3-way control situation does not exist in relation to the licence area concerned.

        (7)    In deciding whether to approve a transaction, the ACMA may have regard to:

             (a)    any relevant undertakings that:

                   (i)    have been accepted by the ACMA under section 61AS; and

                  (ii)    have not been withdrawn or cancelled; and

             (b)    such other matters (if any) as the ACMA considers relevant.

        (8)    If the ACMA refuses to approve a transaction, the ACMA must give written notice of the refusal to the applicant.

        (9)    The ACMA must deal with applications under subsection (1) in order of receipt.

      (10)    If the ACMA receives an application under subsection (1), the ACMA must use its best endeavours to make a decision on the application within 45 days after receipt of the application.

61AMD Extension of time for compliance with prior approval notice

        (1)    A person who has been given a notice under section 61AMC may, within 3 months before the end of the period specified in the notice but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.

        (2)    The ACMA may grant an extension if it is of the opinion that an extension is appropriate in all the circumstances.

        (3)    If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

        (4)    The ACMA must not grant more than one extension, and the period of any extension must not exceed:

             (a)    the period originally specified in the notice; or

             (b)    6 months;

                 whichever is the lesser period.

        (5)    In deciding whether to grant an extension to an applicant, the ACMA is to have regard to:

             (a)    the endeavours that the applicant made in attempting to comply with the notice; and

             (b)    the difficulties that the applicant experienced in attempting to comply with the notice;

                 but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.

        (6)    If the ACMA does not, within 45 days after: