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

I will come to Senator Conroy’s specific question in a minute. This amendment amends the provisions in the bill to require ACMA to inform applicants for prior approval of its decision and enables ACMA to deal with prior approval applications in the order in which they are received. Amendment (9) in particular provides a similar requirement that ACMA must process notifications in order of receipt. I think this is a very important matter and that is why I want to speak to it. Amendments (1) and (2) provide for the addition of subparagraph (e) to 61AJ(4), which will clarify that, where ACMA grants an approval on the basis of the anticipated actions of a third party, ACMA must make this fact known to the applicant.

Amendment (4) provides that ACMA must deal with applications for prior approval to carry out transactions that would place a person in breach of the section—that is, 61AG or 61AH—in the order in which they are received. Sections 61AG and 61AH provide for criminal and civil offences respectively if a person carries out a transaction and it results in an unacceptable media diversity situation coming into existence in relation to the licence area of a commercial radio broadcasting licence, or if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence and a transaction is carried out that reduces the number of points in a licence area. It will provide greater certainty and fairness for industry and the operation of the register of controlled media.

Coming specifically to Senator Conroy’s issue, the new subsection in the bill provides that a person will not have committed an offence—I assume that is what Senator Conroy is getting at—in creating an unacceptable media diversity situation if they have received prior approval for the transaction from ACMA before the transaction takes place. This new provision is similar to the existing section 67 of the Broadcasting Services Act, which enables ACMA to grant prior approval for transactions that would breach the current cross-media rules or the statutory control rules. This new provision will operate alongside section 67, as consequentially amended. ACMA may approve the transaction under new subsection 61AJ(4) if it is satisfied that the transaction would place the person in breach of the new section—that is, 61AG or 61AH—and either the applicant or a third party will take action within a period of up to two years to ensure that either the unacceptable media diversity situation ceases or the number of points in the licence area is restored if there is an existing unacceptable media diversity situation.

I will go on a little about ACMA’s powers and responsibilities, because Senator Conroy has raised an important part of the package. ACMA has specific powers and responsibilities in this process. It can seek further information from the applicant before making a decision—there is a new subsection 61AJ(3). In deciding whether to approve the transaction, ACMA must consider all relevant matters. That includes any relevant undertakings given by a third party under new section 61AS. ACMA may specify in the notice the action that the applicant is to take—that is new section 61 AJ(6). For example, ACMA may approve the transaction subject to the person divesting their interests in a specific media operation. ACMA must specify a time period for approved transactions, during which the action to prevent or alleviate the unacceptable media diversity situation must be taken. The period must be at least one month but no longer than two years.

ACMA is able to allow an extension of time for compliance or, in other circumstances, may seek further information from the applicant before making a decision in relation to an extension request. Extensions can be for no longer than either the original period specified in the notice or one year, whichever is the shorter period. In deciding whether to grant an extension, ACMA must have regard to what the applicant has done, the endeavours they have made to comply with the notice and any difficulties the applicant has experienced in attempting to comply with the notice. However, ACMA must not have regard to any financial disadvantage that may be suffered by the applicant. For example, the fact that the price of shares has recently dropped would not be a relevant consideration in those circumstances. I think that probably covers the substance of what you have asked, Senator Conroy.