Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I do not want to speak for long in this first part of the committee stage. Suffice it to say and to repeat for the third time that I also was concerned at the constrained nature of the committee hearing. It was not a very exhaustive thing. The Labor Party—through Senator Conroy—had 10 minutes to question witnesses. Government senators had about 30 seconds or, if we were lucky, we got 90 seconds. That is because there were so many of us there wanting to make a contribution to this debate.

I was very impressed, as always, with Senator Murray’s comments yesterday. A lot of what he says is true. Hopefully his warnings will never come to pass, but it is something that we as senators need to carefully look at.

I think, now that the government does control the Senate, government senators have to be much more stringent in their scrutiny of some bills, not with the purpose of trying to interfere with the government’s program, which I support, but just to make sure that the bills which come through are drawn in a way that will achieve the government’s goals. I am concerned about a number of the pieces of this legislation. Most of it we all support, I think. There are some elements that I am concerned about. I have negotiated with the minister and with the minister’s office. I am relatively satisfied with most of the amendments that are coming forward, although I do want to question the minister on some of these as we go.

I am concerned at some of the amendments coming through that could lead to country radio stations shutting down. I was distressed to see in today’s Australian, and perhaps in other papers as well, the comments by Macquarie Regional Radioworks that certain stations might have to shut down because they will simply not be profitable. One of them referred to is in Mareeba. It is a radio station I well know because it is up where I come from. I am very often in Mareeba. I use that radio station. If, as a result of what we do today, that radio station and the Roma radio station, which is the other one mentioned—and Senator Joyce would be concerned if the Roma radio station shut down—ceased operation, that would mean a lesser voice for country people with commercial radio stations. Whilst the Mareeba and Roma stations might not be perfect at the moment, they are certainly much better than nothing.

If the figures mentioned in this article are correct—and I have taken some time to check them out—and those radio stations continue to lose money then any sensible employer, any sensible owner, will shut them down. Why would you keep a radio station going if you are losing money on it? If the impositions we make in this bill are such that two radio stations in Queensland that I know of are going to shut down then I think that is bad legislation.

We can try to impose conditions on country radio stations to make sure they do feature country interest stories but, if in doing that we shut the station down, how are we advanced? We have gone backwards. That particularly concerns me. I again, as my colleague Senator Brandis did, refer to yesterday’s Financial Review editorial and urge my colleagues to understand that you can overregulate country radio stations and you can, by overregulating them, get the reverse effect to what you are trying to achieve—that is, you will have less understanding in the area.

Senator George Campbell made some comments about me yesterday that I do not want to go into. Suffice it to say that Senator George Campbell, from his ivory tower in Sydney, would not really understand much about country radio. But he should understand that the ABC in country Australia is a very viable and very local organisation. Country commercial radio stations know that. They have real competition in country areas. You can turn off the commercial radio station and go to the ABC, because the ABC is very local and runs good programs. That is why the commercial radio stations have to continue looking at what their audience wants. If their audience wants local news, they will run local news because they want the listeners. They want the listeners because they want the advertisers, and the advertisers will only advertise if they know they have listeners.

I ask the minister to consider whether we should perhaps not be regulating regional commercial radio as much as is proposed, although my negotiations with the minister have achieved some things but not all I would have hoped—but I guess a little bit is better than nothing. But perhaps we would have been better looking at this in another way. Perhaps we would have been better saying, ‘Let’s take the shackles off community radio and leave commercial radio in the country regulated only by their audience.’

I know there are a lot of community radio stations in many, many towns in country Queensland—I am sure there are in other parts of Australia, but as a Queensland senator I want to talk about Queensland—but they are constricted in the amount of money they can earn. They cannot sell advertising. They can sell sponsorships in a very limited sort of way. There are one or two community radio stations that I am personally familiar with who do a great job. They do employ journalists, but they struggle to make ends meet. What if we were to remove the limitation of five minutes of advertising per hour on community radio—five minutes which, if you do not use them in that hour, you cannot save up for the next hour? We could perhaps look at that sort of thing. I am not sure, but the minister might be able to indicate to me whether that is relevant in this whole package of legislation. Or perhaps the minister is considering these matters in some other forum or some other set of legislative packages.

One way to address this which perhaps we could have explored a bit more was to leave commercial radio as it is—relatively unregulated, particularly in country areas—and unleash community radio, which puts another competitive element in the country market. I do not think community radio will ever directly compete with commercial radio, but it is something that is worth thinking about. I think we would have been better looking at that than imposing regulations on commercial radio in country areas that can lead to some of them shutting down, as today’s papers have said.

By and large, I am satisfied that the bill is appropriate. I am delighted that the minister took on a lot of the suggestions made by the committee—that is, by Senator Eggleston, Senator Brandis, Senator Ronaldson and me. The minister has taken up the recommendation on the two out of three rule for country Australia but which the Liberal Treasurer, Mr Costello, has, by his influence, extended right across the spectrum. That is a good win for the Liberal Party, and I appreciate that—it does ensure diversity of voice.

I am delighted that the minister has addressed the B-channel access. It is something that I questioned a lot of witnesses about at some length in the committee hearings. I know Senator Conroy also raised some questions on the B channel. I am delighted that the minister has taken on my thoughts on that, which are displayed in the committee report, although I do want to question the minister about that, because there are a couple of elements that I think need a bit of scrutiny, perhaps a bit of tweaking. I am delighted the minister took up Senator Brandis’s point on the powers of the ACMA and the ACCC.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The National Party had nothing to do with it?

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

All senators contributing had something to do with it. You were there, Senator Conroy. I do not need to explain to you what happened in the committee hearings. You and I sat through every single minute of those hearings. There were some senators who wandered in and out at various times. You would have to acknowledge that Senator Brandis led the debate and in fact wrote the report on that matter. You would have to acknowledge that I led the debate on the B channel and supported that. You would have to acknowledge that all senators, I think, were supportive of the two out of three rule.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

All of your senators.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I thought you would have been too, Senator.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

As I have said, you can’t put lipstick on a pig and think it is going to—

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Well, we will see. You need a bit of practical realism in all of this, Senator Conroy. You have an opportunity to make this work. You know it is going to go through. You have an opportunity, as I had, to speak to the minister and say, ‘This will not work; this is silly. Why don’t you try this?’ That is what I think we are here for—to try and understand the realities.

Senator Murray made the point that we put a lot of faith in the minister. Yes, Senator Murray, we do. I am afraid that is how it has got to be. This communications package is one that our government has been to several elections on. It has been known in the broad for a long, long time. You do have to put a lot of faith in the minister, and I do. We do need to look at the things that we know are going to happen and try and make them happen in the right way. That is my role here today and that is what I want to do. I direct those questions to the minister for her to answer at an appropriate time.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I would like to say that I support these amendments. I can assure you that, without these amendments for local content, the bill would not have got this far. I want to put that clearly on the record. These amendments protect local content for regional areas. The National Party is emphatic about that. There are obviously other senators who have the same concerns, and we are glad that they do. It is the right of senators to be part of the process. Obviously, when you have few numbers, you have to be in many places at once, but you endeavour as best you can to do your job.

These amendments protect local journalism in country areas. If you do not have a local journalist, you are hardly going to have local content. The amendments are a vital part of this package. I believe strongly that there are other issues that need to be added to this package. I still have serious concerns about sections of this legislation, which will be expressed in the way I vote. Without the local content measures, certainly there would be no support for this bill from the National Party. Therefore, we are strongly in support of this bill.

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

I will make some very brief comments in response to this whole issue of getting the balance right between requirements for local content and the financial and other pressures on existing licensees. The first point I would make is that certainly these provisions are not intended to be onerous, but they very clearly are designed in such a way as to ensure that people who live in rural and regional areas do continue to get local content, irrespective of what other mergers or movements in licence holders may occur as a result of these amendments.

As amended, the bill will provide for local content requirements for all regional radio licensees from 1 January 2008. Any radio licensees subject to a trigger event—that is, a merger or sale or transfer of a licence, which can only occur after the new diversity laws come into effect on proclamation—will also be required to provide minimum levels of local news and information of 12½ minutes a day and five bulletins a week as well as weather reports, community service announcements and emergency warnings, where necessary. This will form part of the 4.5 hours. They will also be required to establish local content plans and to maintain a local presence so that you do not have a situation of excessive hubbing. I am not making any allegations here; I am simply saying that it is noted that there is a potential for hubbing that removes the local presence from those who otherwise would wish to have some local news.

But the government recognises—and I want to make this point very clearly, particularly for those radio licensees who might be listening to this debate—that a requirement for 4½ hours a day of local content may not be the appropriate level for licensees to maintain commercial viability. During the Senate committee hearings it was found that many current local radio licensees already do provide a significant level of local content anyway—quite logically because it is part of their business; it is not hard to understand. But, in my view, there is no point at all in legislating local content levels if licensees go out of business in trying to meet them. So we are going to try to get this balance right and to give licensees an opportunity to talk to the regulator about the potential impact on their business models so that we will have some objective evidence and data about what target we should be trying to meet.

The government also acknowledges that regional Australia is extremely diverse, ranging from large and rapidly growing centres like the Gold Coast to small towns struggling to deal with drought and population shifts, which is probably the main concern of those communities. Accordingly, the amended bill requires the government to cause a review to be conducted on this issue. I will be directing the ACMA to look at local content across regional radio and to advise whether the 5½-hour level is appropriate. In particular, we will be seeking advice on whether different levels should apply to smaller operators and, of course, whether smaller and larger markets should have some different treatment.

Once the ACMA has reported to the government, by 30 June next year, the legislation will contain an opportunity for me to revise the requirement, though it will be subject to a disallowable instrument. It will be open, accountable and transparent and parliament will have another opportunity to look at this issue. I will also ask the ACMA as part of this review to advise on whether small or family owned licensees could be unintentionally caught by the provisions of the trigger event such that they may become subject to news and information requirements and local presence requirements without undergoing a sale or a substantial transfer of control of their licence.

I hope that I have covered the gamut there, from those concerned that these are too onerous down to those concerned that they are not stringent enough. I want to make it very clear that there is currently no requirement at all and will not be until there is a review. We will be able to conduct a review before the commencement of any of these obligations. The more particular obligations, of course, will not happen unless there is a trigger event to do with a sale, a merger or a substantial transfer of control.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I want to indicate at the outset that the Democrats will be supporting the government amendments that are listed on the running sheet. The reason we are doing that is that we think they strengthen the legislation. In saying that we will be supporting those amendments, I want to acknowledge our party’s appreciation for the work of Liberal and National party senators, and some Liberal and National party members, in ensuring that the government adjusts its package to recognise real issues of concern with the legislation that was before us.

In an earlier remark, Senator Ian Macdonald made a true point which is well understood by parliamentarians but probably not as well understood elsewhere. That was that parliamentarians are obliged, including those in my own party, to put a great deal of faith and trust in the portfolio holder, because you simply cannot get across every issue with the welter of issues that are before us. But it is incumbent on all parliamentarians to not take that to an extreme and to be alert to issues of national public interest or significance which need attention. Now that the government does have the numbers in the Senate, a number of Liberal and National senators and members have stepped up to the plate in being a little more assertive, whereas formerly they could rely on the opposition or the crossbench to do that job for them, knowing where those parties stood on matters of principle.

In finding their feet in that regard, there have been allegations of disloyalty and disunity, whereas in fact leading proponents of this assertiveness, such as Senator Joyce, are merely indicating that that is the proper role in an environment where otherwise the executive would hold sway—because, as we know, even if there are members of the cabinet who disagree with particular matters, once the majority are concluded that that is how it will be those ministers have to fall in line. That does not apply to parliamentarians not in the cabinet; they do not have to fall in line; and in this bill they have not fallen in line. Therefore the amendments by the government would not have happened without the active engagement of Liberal and National senators, and those of us who are not government senators would have been left in the situation where we simply put amendments and lose on a mass vote without proper consideration of what we put before the parliament.

With respect to Liberal and National senators, I would say that sometimes they should have a closer look at some of the amendments from the crossbenchers that they are throwing out automatically, because sometimes they do have merit. Over the last nine or 10 years, many amendments forced upon the government have, in retrospect, been found to be perfectly acceptable, have actually worked rather well and people have been pleased that they have come about. All wisdom does not reside in me or in my party and neither does it reside in anyone else or any other party, so I think what we are seeing here is a development in maturity, frankly, in the way the Senate operates in a situation where the government has the numbers.

Having made those broad remarks in appreciation of the role of those who in many respects had great courage, frankly, in standing up on these matters, given the view of some of their colleagues that you have to be loyal and united regardless of the issue, I will indicate our broad support throughout for the government amendments, which improve this package.

Michael Ronaldson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I have listened to Senator Murray. Senator Murray is someone that I have a great deal of respect for, but he seems to have forgotten that the majority of the Liberal members actually put forward some quite substantial amendments to this bill. This notion that we are some sort of policy lackey, just blindly following what the executive says, is, quite frankly, patent nonsense. It is absolute, patent nonsense.

I want to deal with a couple of other matters. There have been some very unfortunate reflections on other people in this chamber over the last 24 hours—particularly, I have to say, in relation to Senator Fielding. This is one person with a staff of three. I do not agree with everything that Senator Fielding has said since he has been here, but I will tell you what I do respect him for: the fact that he puts an enormous amount of work into coming to a position on the matters that go before this chamber.

It is all right for Senator Conroy to giggle over there. He has the resources of the union movement and the Labor Party. He has resources everywhere. But somehow it is a joke when someone says that Senator Fielding is doing it hard. He is putting an enormous amount of work in with a very limited number of staff. I defy anyone to stand up here and accuse Senator Fielding of not giving due consideration to the matters that have come before this chamber in the last 14 months. I think that is a disgraceful allegation.

What amuses me even more is this. There was a reflection on Senator Fielding—the person with three staff and no other resources—for not being at the committee hearings. Senator Fielding was attacked by Senator Brown, the ‘Where’s Wally?’ of the Senate, who has the resources, who does have the backing and who did not bother coming to the committee hearings. He did not bother coming to this committee. And where was Wally during the Telstra committee inquiry? You know where he was, Senator Conroy; he was wandering around—

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I raise a point of order, Madam Chairman. As much as I enjoy Senator Ronaldson’s contributions, I do not think that referring to another senator as Wally is within the orders of the Senate.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I also raise a point of order, Madam Chairman. It is to do with relevance. I am not sure what ‘Where’s Wally?’ has to do with the debate in question. I understand a filibuster when I see one. I understand that Senator Ronaldson wants to protect the minister from questioning, at all costs. But I ask you to draw him back to the bill.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

On the point of order, Madam Chairman: Senator Ronaldson is responding to other senators who have already spoken in this debate so far. You will recall that Senator Brown, in his typical fashion, spent some time accusing Senator Fielding and Family First. Obviously Senator Ronaldson is just responding to that. I did not see Senator Conroy make the point when Senator Brown was doing that. He did not suggest that that was beyond the call of the debate. And there was another senator who attacked Senator Fielding. I think it is important that Senator Ronaldson be allowed to continue along this line.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

On the point of order, Madam Chairman: it is clear that Senator Macdonald is referring to a previous debate.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

No, it was this one.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Senator Brown was speaking on the motion about the guillotine. He was not speaking on the bill. This is a debate about the bill. I appreciate that you are now nodding, but Hansard will not record your embarrassment, so I would like to put that on the record.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

On the point of order, Senator Ronaldson, I am sure that you are aware of the standing orders and the need to reflect properly on members of this chamber. I just remind you of that. I also remind the chamber that we have not actually moved the first set of amendments yet, so we might want to give some consideration to the time constraints the chamber is under in considering this bill.

Michael Ronaldson (Victoria, Liberal Party) Share this | Link to this | Hansard source

Thank you, Madam Chairman. As always, I respect your advice in relation to these matters. Senator Brown did not come into those Telstra committee inquiry hearings. He did not come into those. Yet he viciously attacks people who disagree with his views. It is a bit rich. I am not filibustering; I am responding. I am just about to talk about some other matters. If you talk about a filibuster, what about Senator Ludwig this morning? Twenty minutes! What did Senator Ludwig talk about, Senator Conroy? I think I heard some mention about some environment bills.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Cornelia Rau.

Michael Ronaldson (Victoria, Liberal Party) Share this | Link to this | Hansard source

Some environment bills—and Cornelia Rau. How was that possibly relevant? And you are talking about wasting time!

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

On a point of order, Madam Chairman: Senator Ronaldson appears to be now making the same mistake that Senator Macdonald did. They are now debating comments that were made in a previous debate and that are not relevant to this bill. Senator Ludwig was speaking on the guillotine. Senator Brown was speaking on the guillotine. Madam Chairman, I ask you to bring Senator Ronaldson back and not let him flout your previous advice. I ask you to bring him back to the bill.

The Temporary Chairman:

Thank you, Senator Conroy. Senator Ronaldson, I also remind you to think of the time for consideration of this bill when you are making your comments.

Michael Ronaldson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I said before that I respected Senator Murray. I respect his integrity and I respect his intellect. Clearly what Senator Murray was trying to elicit from witnesses during the two days was some evidence to substantiate his claim about some change in the nature of our democracy if these bills were to pass—that somehow democracy as we know it will suddenly tumble down in front of us.

Senator Murray was consistent—I will give him his dues—because he raised these matters from the ACCC right through the rest of the two days. Senator Murray does not give credit lightly, and I respect him for that. When he gives credit to someone, you must take due notice of it. We had Mr Anthony Bell, the Managing Director of Southern Cross Broadcasting, appear before us. Mr Bell said in evidence:

Southern Cross Broadcasting supports the proposed reforms on cross-media ownership. There appears to be little realistic substance behind arguments to retain the status quo and, in many cases, these arguments are based on self-interest and fear of competition rather than what is appropriate for the community.

Later on during Mr Bell’s evidence Senator Murray said:

Mr Bell—

and I would ask you to reflect on the comments I made before about Senator Murray’s comment that people should not be taken lightly—

we are well served as a committee by having people with your long experience and, I would guess, expertise talking to us. With that long perspective in mind, I want you to give me your broad response to this legislation. We legislators are primarily concerned with this legislation from two perspectives in my view. One is with respect to consumers and the other one is with respect to our democracy. My question is: do you consider this package as a whole to actually assist the health, improve the health or support the health of our democracy?

And the response—from someone whom Senator Murray had already acknowledged as a man of great experience:

I certainly do not see it as a threat to the health of our democracy in any way.

In those two days of inquiry Senator Murray did not acknowledge, from my recollection—and I know he will correct me if I am wrong—the expertise of any other witness.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

No, there was Nick Greiner.

Michael Ronaldson (Victoria, Liberal Party) Share this | Link to this | Hansard source

He acknowledged Nick Greiner. I cannot remember but, as always, if Senator Murray tells me something was said, then I will respect that. So Nick Greiner was the only other person. This was in two days. I would put it to the Senate that Senator Murray only made those comments because he did respect the expertise of Mr Bell. Mr Bell gave Senator Murray an answer that he did not want. In finishing, I will quote Senator Murray: ‘All wisdom does not reside in me nor in anyone else in this chamber.’ I think they were the rough words. That is absolutely right. For Senator Fielding to be attacked as viciously as he was because he may possibly vote one way means—

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Not by me.

Michael Ronaldson (Victoria, Liberal Party) Share this | Link to this | Hansard source

and I accept not by Senator Murray—that some of those opposite are not prepared to respect Senator Fielding’s right to make a decision on the evidence before him and to vote as he sees appropriate. I think that is a very sad reflection.

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

I want to deal with an issue that Senator Ian Macdonald raised in his earlier contribution—the very important role of community radio. Of course community radio deserves a hearing and an audience, because it is a major contributor to diversity, which has been a very significant part of the debate that we have had in relation to this whole media package, both in metropolitan and regional areas. I am very glad that Senator Macdonald has seen fit to raise the issue on behalf of constituents in community radio.

There are over 160 regional community radio stations, and large amounts of local content are on community radio. It might be called more of a micro audience, but it is certainly very important to those who have the benefit of listening to local radio. It is characterised also by a very large number of local volunteers. It is, if you like, glue in a community if they have a community radio, because of the volunteers and the local content. It does provide a very important role in keeping those in communities—certainly small communities—in touch. It is extremely important to Indigenous communities. Often community radio can be the only source of broadcasting, in effect, that they get of messages that can be very important, such as extreme weather warnings and things of that nature.

It is not included in the voice count because of its particular characteristics. For that matter, nor is community television included in the voice count. That is not because it does not provide diversity but because, due to its particular structure and characteristics, it is certainly not thought appropriate to also be counting it as some additional voice. Community television and community radio fall out of the voice count, as does ABC radio. Metropolitan communities are served by up to five ABC stations, with Radio National, Local Radio, Triple J and various others, and of course there is SBS and ABC television. Community radio is also outside the voices count, as is pay television and certainly all of those new platforms, such as the internet.

There is no doubting the importance of community radio or the government’s commitment to it. The government does provide significant funding that the community sector leverages into large amounts of local content. I know that because it recently had a survey which I launched, and that was a very interesting indicator of both its audience reach and why it is so popular with local content, which also includes local music and entertainment. So it is a very valued resource within the community.

I look forward to working with the sector in its transition—both radio and TV—to the new digital platforms. It will be quite a challenge for very small analog community radios to make that kind of shift and, no doubt, it will take some time. Radio does pose particular issues in the move to digital, but community television does deserve to be brought along in how we are thinking about the new digital space. I expect to have something more to say about the Digital Action Plan and how community television will be accommodated within the scheme to get us to switch off the analog signal and free up all that spectrum so that we will be in a position to use the spectrum more effectively and to make sure that community TV is accommodated.

Senator Macdonald made an interesting suggestion about whether or not community radio and the community sector should have so many restrictions on their advertising content. As Senator Macdonald would appreciate, that does pose some interesting issues in relation to how effectively that might then act as a competition lever for existing commercial radio and television. There is a moratorium on new commercial radio licences on the broadcasting services band as part of the move to digital. There are some particular pressures on the community TV sector and the community radio sector that I will be very interested to deal with and to look at. I certainly welcome Senator Macdonald’s contribution and suggestions in this regard. We will take that matter forward, but not as part of these bills.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I will just clarify something on that particular exchange. Senator Coonan, as I understand it, when we talk about a minimum of four voices in a country area and a minimum of five voices in a city area, we are really saying that that is four voices plus community radio. In most country parts of Australia there is a community radio station, so it is really at least five voices in the country.

I just want to make sure that it is understood that there are four voices, plus community radio, plus the ABC and perhaps plus SBS. I am just trying to get confirmation. There is a lot of variety particularly in the areas that I represent but also in cities where, as I understand it—as I drive into cities occasionally—there are about three or four different community radio stations. So you actually have five voices, plus the three or four community radio stations, plus five ABC stations, plus SBS. So there is a diversity of opinion and views. I just want to confirm that that is the case, because it is a very important point that we need to consider when we are talking about diversity of opinion in Australia.

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

Thank you, Senator Macdonald. I do think it is a very important matter that really cannot be overemphasised. It is important to realise that the voices that we have talked about as part of this package are, namely, the four voices in regional areas as the minimum and the five voices in metropolitan areas. Remember, of course, this is a floor; it is not a target. It is very important to realise that it is quarantined to the regulated platforms of commercial radio, free-to-air commercial television and print newspapers in a defined licence area. That does not include, for instance, the Australian or the Financial Review, which are national newspapers. It certainly does not include the up to five radio stations that the ABC broadcasts. It certainly does not include SBS radio. It does not include ABC television or SBS television. And, of course, we are about to lift the genre restrictions on both the ABC and SBS, which the Labor Party supports. All of these are additional sources of diversity but, as I remarked in my earlier contribution, it is important to note that community radio has a particular place. The government recognises that. It is not included in any of these voices. It is a significant level of additional local community input, and we recognise that and I think that that will clarify your point.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Can we be serious here for one moment? If you just want to stand around and congratulate each other, please go back to your party room and do it. This is the Senate. This is the only opportunity for those senators who have not had a chance to properly consider all these amendments—because they have been dropped on us at the last minute—to get any clarification of what is in them. The opportunity to ask these questions is now. You have guillotined that time down to four hours: do not make the Senate the same farce that you acknowledge the Senate committee was.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I’m asking serious questions.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

No, you are congratulating each other on what a brilliant job you have done.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I want to clarify issues.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Clarify! Amendments (1) and (2) on sheet PZ245 relate to ACMA’s powers to grant prior approval—

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I rise on a matter of procedure. Could the minister move the amendments and then we can speak to them.

Helen Coonan (NSW, Liberal Party, Minister for Communications, Information Technology and the Arts) Share this | Link to 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:

 

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Thank you, Minister, for giving us another explanatory memorandum to digest in the middle of the debate! Amendments (1) and (2) on sheet PZ245 relate to ACMA’s power to grant prior approval to transactions that would create an unacceptable media diversity situation. ACMA can approve a transaction if it is satisfied that the situation would be remedied by the actions of a third party. Could the minister outline what sorts of actions are envisaged here?

Helen Coonan (NSW, Liberal Party, Minister for Communications, Information Technology and the Arts) Share this | Link to 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.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Thank you for that, Minister. That was helpful. It did not quite cover the specific that I am trying to get to. You read it out; you talked about ‘remedied by the actions of a third party’. I am just trying to get an understanding of what actions a third party could take that would be considered to be a remedy. So, as an example, if someone announced that they were going to open a new newspaper in the area, would that be the sort of thing that would fall into the category of actions? And what would the other actions be that could remedy the situation?

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

The answer to that is, ‘Yes, that is an example.’

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Are there any others you are able to share with us?

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

I have just been confirmed in my supposition that it would also be divestment of licence. They were the kinds of issues.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Does the legislation contain any criteria to guide ACMA on when they should be able to approve transactions that breach the five-four test? Mr Chapman, when he appeared before us very briefly, suggested that they would use their professional judgement. I am just wondering if the legislation contains any guidance.

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

Thank you, Senator Conroy. What would apply is really the same position as applies now. There are some definitions in the act; it is all about control, and obviously it would vary substantially depending on how a group is defined in the act. But it really is still the same approach that currently applies under the act, which relates to control.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Mr Chapman indicated that ACMA would just use their professional judgement. If we have not put any extra guidance in for them, could I ask why not? It is a fairly sensitive area; I just thought we might want to give them a bit more guidance than ‘whatever Mr Chapman and ACMA think is the right way to go’.

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

I am reminded that they already have a procedure and an approach that is followed in respect of section 67 applications now. Mr Chapman, I think, is quite capable of thinking around whether or not there is sufficient clarity if there needs to be anything else, but really it is still the same approach. The definitions are there. ACMA does this already. So it is difficult to imagine that they would not be in a position with their current procedures and approaches to be able to communicate with those wishing to engage in these transactions and to have a clear understanding of what is required under the act and the way in which ACMA will approach it.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

There has been a lot of discussion—and you mentioned it earlier—about the first-mover advantage under the rules proposed by the bill, and the amendment provides that ACMA is to deal with applications for registration in the order in which they are received. How would ACMA deal with applications to register media groups? There are a number of different forms of communication, as you are well aware. So, for example, if an application was lodged at nine o’clock on the first morning by email, another application was lodged at nine o’clock on the first morning by fax, and another application was literally shoved under the door so that when the office opened at nine o’clock it would also have been received by hand or mail at nine o’clock in the morning, how is ACMA going to determine which is the first, if they all literally arrive at the same time, at nine o’clock?

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

You asked this of the department, you might recall.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

And they said they had not got a process at that stage. Actually I asked it of ACMA and the department, and neither of them had a suggestion at that stage, Senator Macdonald.

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

I can answer that very succinctly, I think. They will be dealt with in the order in which they are received.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The point is that it is possible, with the different forms of communication, for three to be received at the same time. They can be received by email, fax and hand, all on the dot of nine o’clock, from three different organisations.

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

Senator Conroy, are you seriously suggesting that somebody can be receiving something in their hand, accessing their emails and dealing in some other way with some other platform, all at exactly the same time? These transactions are timed. But, obviously, ACMA has some ability to have some discretion in how it understands it receives these things. It just does not seem other than—let me put it this way—the most outlandish suggestion that, right at the very same instant, three applications over three different platforms could all be registered at exactly the same time. I think that is really clutching at straws.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Could I put it to you that it is not clutching at straws at all. Because of the way the legislation is structured, with what is called ‘first-mover advantage’, the first person in the door is advantaged. All of the organisations will know that whoever gets in first is going to have an advantage. So it is quite conceivable that three different organisations—or even two different organisations—will literally be waiting to email, fax and hand in their applications to the organisation. And let us be clear what you mean when you say ‘one person’: ACMA is not one person; ACMA is an organisation.

It is entirely possible that three separate organisations could all put in their applications at the same time, because of the way you have structured the legislation. There must be some way, other than the toss of a coin, to determine which is the first when billions of dollars are at stake. You just have to look at the morning’s stock market, at what happened late yesterday and what will be happening even as we speak. There is going to be a frenzy on the stock market and there is going to be a situation where major players—when there are billions and billions of dollars at stake—are going to want to be first in the door. So there needs to be some thought given to how we are going to process the applications if they are all coming in at the same time—which is entirely possible; it is not clutching at straws at all—when billions of dollars are at stake.

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

Senator Conroy, it happens in other industries, doesn’t it? For instance, it happens in the mining industry and it happens in other industries. There is a first-mover advantage. It is not something that the regulator is incapable of dealing with. Whilst this mythical and remote possibility of things flooding over different platforms to ACMA is theoretically possible, obviously the organisation has an opportunity to deal with them in the order in which they are received. That is the way in which it will happen. I doubt very much that the kind of issue that is concerning you here this morning is likely to be a material one.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I am interested in Senator Conroy’s point, and I think we briefly touched on this at the committee hearing. It was something that did concern me as well. I hear what the minister says, but I wonder if someone who has more time than I could actually look at this. I thought it was the department who gave an answer on this. It might have been ACMA. There were a lot of things happening that day, but I thought they said that they would look at them all—and there are a lot of other criteria to be looked at because there are a hell of a lot of anticompetitive instances to be looked at. Someone might perhaps look up what the department actually said because I thought an answer was given which, as I recall, sort of satisfied me at the time. Senator Conroy’s memory may be better than mine on what was said.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

It was so rushed, Senator Macdonald. It could be that it was the department we were asking. I thought it was both, but I accept that it may have been just the department. I have to say that I am a bit more concerned about it. I am sure that if News Ltd get theirs in at nine o’clock and are knocked back on the basis that two others were received by hand at nine o’clock across the counter by the person to whom they have to be submitted, News Ltd are going to take it very seriously. I would imagine that you would be in court on the definition. We have set up a process. If billions of dollars of merger activity is going to be based on literally the flip of a coin, I would imagine that News Ltd or any of the other major media players would be absolutely wanting to enforce the letter of the law. I am conscious of making sure that we have a process that will actually stand up in a court—not just because the minister says, ‘I didn’t think it was going to happen,’ and then suddenly, bang: three applications turn up in the morning.

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

I will add to my earlier response seeing as it is a matter of concern to colleagues. There is of course an amendment we are discussing that deals specifically with subsection E of division 5A of the bill, to enable ACMA to deal with situations in which two or more registrable notifications are made. The bill will be amended to require ACMA to deal with the notification of media transactions in order of receipt ensuring that, should circumstances arise in which only one transaction of two or more transactions is registrable as compliant with the requirements of the Broadcasting Services Act, the transaction first notified to ACMA will be the one that is registered. It will provide greater certainty and fairness for industry in the operation of the Register of Controlled Media Groups.

Of course this is not, should the Senate pass this legislation, due to come into operation tomorrow morning; it will come into operation upon proclamation. ACMA has the power to determine a process of dealing with applications as they are received even if it is down to the last second. So, whether it is theoretical or not, I am very confident that ACMA will be able to have processes in place that will enable it to deal with the process and how these applications are received. It is certainly the intent of the amendments to give ACMA that power to be able to deal with notifications in order of receipt. It certainly already has the power to determine any process that is required in order to be able to deal with applications as they are received.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

A further process might be worthwhile just to protect the Commonwealth, I suspect, but I appreciate that answer. I want to go now to the two out of three rule. Can the minister confirm that, even with the two out of three rule, it is still possible for the number of owners to fall from six to four in regional markets like Bundaberg, Townsville and Rockhampton and in Cairns you could still go from seven to four? Minister, could you confirm that that is the case?

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

What I want to do in relation to the debate on the two out of three rule is, first of all, make some preliminary comments, because I think it is important; it certainly is a very important part of the structural underpinning of these diversity protections. The purpose of the amendments is to amend provisions in the bill to prohibit the control of more than two out of the three regulated media platforms of print, free-to-air television and radio. This so-called two out of three rule will prevent three-way mergers. Amendments (1) and (2) define an unacceptable control situation as being one where a person is in a position to exercise control over all three types of regulated media and provide that a breach of the rule could result in the pursuit of civil or criminal penalties by ACMA should prior approval for any breach not have been successfully obtained by the person undertaking the transaction. The legislation also contains an amendment that provides that remedial directions may be issued by ACMA for the correction of an unacceptable three-way control situation.

Amendment (8) provides for an extension of the amount of time allowed for an unacceptable three-way situation to be corrected in appropriate circumstances. Amendment (14) allows ACMA to accept written undertakings that the person undertaking a transaction will take specified action to ensure that an unacceptable three-way control situation does not exist in relation to the licence area of a commercial radio broadcasting licence. Amendment (19) will enable ACMA to apply to the Federal Court for an injunction to restrain a person from engaging in any conduct that would result in an unacceptable three-way control situation coming into existence in a commercial radio broadcasting licence area. Of course, there are further technical amendments.

This measure will prevent the establishment of potentially dominant three-way media groups. The government think that that is an important structural additional safeguard in this package of legislation, in addition to the voices test, because it provides a limit on the types of mergers as well as the number of them. In respect of Senator Conroy’s specific question, my very clear understanding is that it certainly does not change the floor of either four voices in regional areas or five voices in metropolitan areas. It is an important provision that will prevent undue concentration and protect diversity.

Grant Chapman (SA, Liberal Party) Share this | Link to this | Hansard source

I call Senator Parry.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The Government Whip!

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I have been seeking the call for some time, Senator Conroy, and we have been generous in allowing you to have all the questions. I also wish to ask a question of the minister about ACMA. I think it is important at this stage, at least, to place on the record for those in the gallery, if for no other purpose, what ACMA stands for. We all talk here using acronyms and we understand what ACMA is. ACMA is the Australian Communications and Media Authority. It is important to have the full name placed on the record from time to time.

My question goes to what powers ACMA has. I think it is very important that the public of Australia have fears allayed concerning—

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Is this a question?

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

It is a question. It is an important question and it is important that the public of Australia understand that this legislation will have protection mechanisms. When people are reading this debate, I think they need to be assured of that. I have a serious question to ask the minister concerning the powers of ACMA. I think it is a critical matter. When you change major legislation in this country, when you change things that have attracted as much media attention as this has, you need to assure the public of Australia that there are correct mechanisms in place. I think that is a very important thing.

Kate Lundy (ACT, Australian Labor Party, Shadow Minister for Sport and Recreation) Share this | Link to this | Hansard source

I can’t believe you’re doing this again.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I am not doing it again; this is the first question I have asked. I just want to ask the minister about the powers of ACMA in relation to prevention of breaches of the media diversity rules. It needs to be emphasised and it needs to be always on the public record. People listening to this debate need to understand that there are severe penalties in place if things do not go correctly, and also that the authorities that this government has in place have the ability to undertake measures that will prevent breaches of any of the acts. I put that question to the minister concerning the media diversity rules and the powers that ACMA has to prevent these breaches.

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

I thank Senator Parry for the question. I am grateful for the opportunity to place this matter on the record. I do agree that it is a matter of importance that those listening to the debate clearly understand that there are some very significant powers in both of the regulators to prevent breaches of media diversity rules. Those rules of course go to the heart of the cross-media changes. Those rules are that, if a company undertakes a transaction that creates an unacceptable media diversity situation, ACMA has a number of very powerful sanctions at its disposal. Creating what could be termed ‘an unacceptable media diversity situation’ is a criminal offence. It is punishable by a fine of $2.2 million per day, and $11 million per day for companies. The regulator, ACMA, may also seek similar fines via civil penalties, without having to refer the matter to the Director of Public Prosecutions. Obviously, there is a very different onus if the Director of Public Prosecutions is involved in imposing a penalty.

ACMA can issue a remedial direction requiring the parties involved to divest the asset causing the breach—we dealt with that a little earlier—or to do anything else necessary to restore media diversity in the affected licence area. These are very important matters that have been raised, for instance, by Senator Joyce, and I feel that I am not only entitled to deal but also have a duty to deal with the issues that have been raised about what can happen if there is any particular breach. Failure to comply, as I say, involves the risk of both criminal and civil penalties. Under an injunction power to be provided by government amendment—and that was also something sought by the Senate committee, which I have agreed to—ACMA will be able to obtain an injunction requiring a company to divest, or otherwise take action, to remedy any unacceptable media diversity situation.

I think it is also very important that I deal with the role of the ACCC, because clearly the media is subject to two regulators. The ACCC will play a key role, although perhaps a reduced role now that the two out of three structural change is being introduced across all licence areas, in ensuring that potential media transactions are carefully assessed for their impact on competition in relevant markets.

This is separate from, but will certainly complement, measures to protect diversity, including the five-four diversity test and the existing licence and reach limits, which do not change. I think that is worth saying, because there is no suggestion that the existing requirements that mean that you cannot own more than one television station, one newspaper or two radio stations in a licence area will change—and neither will the existing reach limits, which are to 75 per cent of the Australian population.

The ACCC will continue to assess proposed mergers under section 50 of the Trade Practices Act 1974 to ascertain whether the proposed transaction will have the effect of substantially lessening competition in the affected markets or market. The bill will require all mergers involving commercial radio, commercial television and associated newspapers within a regional radio licence area to obtain formal clearance from the ACCC prior to seeking an exemption from the cross-media restrictions from the regulator, the ACMA—the Australian Communications and Media Authority. This will cover those media mergers likely to have the greatest impact on diversity and competition—three-way mergers. Of course, this has now changed, so the ACCC will no longer need to have that particular power, which becomes obsolete with the two out of three change. In the circumstances, I think the ACCC’s powers have been very clearly articulated.

The ACCC has in fact released a paper providing guidance on its approach to potential media mergers. The paper provides guidance on the approach the ACCC will take in determining what markets are affected by a media merger. That is a very important matter that affects the public and the public interest, and the paper provides considerable information on the type of analysis the ACCC will undertake in assessing media mergers and how it will address media specific issues. The key markets the ACCC will be focusing on are advertising, the supply of content to consumers—and that of course includes news and information—and the purchasing of content from content providers.

The ACCC, critically and very specifically, discusses rural and regional markets, particularly with regard to the impact that we have seen of technological advancements on regional media assessments. In the ACCC’s view, rural and regional markets are currently highly localised and that is likely to continue for the foreseeable future. The ACCC notes that regional markets typically depend on a small number of media outlets for local news and information and are generally less well served by new media, such as pay television or the internet, which tend to very much address and complement national markets.

While new media may be available in regional areas, they may not be an appropriate substitute—and I have never claimed they were. I have simply said that they are an emerging and exponentially accelerating force in media and that certainly they will, to a large extent, attract advertisers and no doubt threaten some of that advertising revenue for local media—local newspapers in particular. So the ACCC considers that factors such as these will impinge on media mergers in rural and regional Australia.

But, in response to Senator Parry more broadly, I am very grateful for the question, because I do think that there is a great deal of interest in the role of the regulators. Now that there has been the two out of three structural change to protect diversity, while there is a reduced role for the regulators, they are still a critical part of ensuring that media mergers comply with the provisions of this bill.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I would like to gently remind members of the Senate that there are three portfolio holders present in this debate—the minister, the shadow minister and me—and Senator Joyce also has an amendment before the chamber. There are 25 sets of amendments we have to deal with, and there are four bills. The government has had the opportunity to prepare its package. I personally have no objection—and would not have any objection—whatsoever to anyone participating in the debate but, in view of the guillotine that we are under and the fact that we have 25 sets of amendments to deal with, I do hope that members on the government side will be fair and ensure as much time as possible is given to those who have amendments. The government has five sets of amendments, and there are 20 others that belong to Labor, the Democrats and The Nationals.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The minister touched on the ACCC’s responsibility for media diversity. Could she detail whether there is any overlap between the responsibility of the Australian Communications and Media Authority and that of the ACCC in this legislation?

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

I thank Senator Bernardi for the question. There is obviously—

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Senator Conroy interjecting—

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

Senator Conroy, I would like to address Senator Bernardi’s question, please. The question related to the overlap between the ACCC and the ACMA. While they clearly have very defined roles, there is no doubt that there is some complementarity in the way in which they will be approaching media mergers. But the role has been very clearly delineated for both the ACCC and the ACMA.

The ACMA will administer the diversity test and the local content arrangements and requirements. The ACCC will look after what is a market for media in terms of mergers. The ACCC will look after the competition side of it; the ACMA will look after the diversity side of it. Their roles are clearly delineated, and whilst there is some complementarity, they do have very important and distinguished approaches that are very important to this package. I take Senator Conroy’s point.

Grant Chapman (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendments to schedule 1 be agreed to.

Question agreed to.

The Temporary Chairman:

The question now is that subdivision F in schedule 1, item 8 stand as printed.

Question negatived.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I move:

(1)    Schedule 1, item 8, page 20 (after line 15), at the end of Subdivision D, add:

61 ATA  Injunctions

        (1)    Subject to subsection (2), where, on the application of the ACMA, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:

             (a)    a contravention of section 61AG, 61AH, 61AL, 61AM, 61AQ or 61AR;

             (b)    attempting to contravene such a provision;

             (c)    aiding, abetting, counselling or procuring a person to contravene such a provision;

             (d)    inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;

             (e)    being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or

              (f)    conspiring with others to contravene such a provision;

                 the Court may grant an injunction in such terms as the Court determines to be appropriate.

        (2)    Where an application for an injunction under subsection (1) has been made, the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1).

        (3)    Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

        (4)    The Court may rescind or vary an injunction granted under subsection (1) or (3).

        (5)    The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

             (a)    whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

             (b)    whether or not the person has previously engaged in conduct of that kind; and

             (c)    whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

        (6)    The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:

             (a)    whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;

             (b)    whether or not the person has previously refused or failed to do that act or thing; and

             (c)    whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

        (7)    Where the ACMA makes an application to the Court for the grant of an injunction or an interim injunction under this section, the Court shall not require the ACMA or any other person, as a condition of granting an injunction or an interim injunction, to give any undertakings as to damages.

61ATB  Stay of injunctions

        (1)    The Court may stay the operation of an injunction granted under section 61ATA if:

             (a)    any of the following has applied for the stay:

                   (i)    a Minister of the Commonwealth;

                  (ii)    the ACMA;

                 (iii)    a party to the proceeding for the injunction; and

             (b)    the Court considers that granting the stay would, in all the circumstances, be just.

        (2)    An order staying the operation of the injunction may be expressed to have effect for a specified period and may be varied or rescinded by the Court at any time.

        (3)    Nothing in this section affects other powers of the Court.

        (4)    In this section, injunction includes an interim injunction.

61ATC  Divestiture

        (1)    The Court may order, on the application of the ACMA, if the Court finds or has found in another proceeding instituted under this Part that a person has contravened section 61AG, 61AH, 61AL or 61AM, the disposal by the person of all or any of the shares or assets acquired in contravention of that section.

        (2)    Where:

             (a)    the Court finds, in a proceeding instituted under this Division, that a person (in this subsection referred to as the acquirer) has acquired shares in the capital of a body corporate or any assets of a person in contravention of section 61AG, 61AH, 61AL or 61AM; and

             (b)    the Court finds, whether in that proceeding or any other proceeding instituted under this Division, that the person (in this section referred to as the vendor) from whom the acquirer acquired those shares or those assets, as the case may be, was involved in the contravention; and

             (c)    at the time the finding referred to in paragraph (b) is made, any of those shares or those assets, as the case may be, are vested in the acquirer or, if the acquirer is a body corporate, in any body corporate that is related to the acquirer;

                 the Court may, on the application of the ACMA, declare that the acquisition, in so far as it relates to the shares or assets referred to in paragraph (c), is void from the day on which it took place and, where the Court makes such a declaration:

             (d)    the shares or the assets to which the declaration relates are deemed not to have been disposed of by the vendor; and

             (e)    the vendor must refund to the acquirer any amount paid to the vendor in respect of the acquisition of the shares or assets to which the declaration relates.

        (3)    Where an application is made to the Court for an order under subsection (1) or a declaration under subsection (2), the Court, instead of making an order under subsection (1) for the disposal by a person of shares or assets or a declaration under subsection (2) that the acquisition by a person of shares or assets is void, may accept, upon such conditions (if any) as the Court thinks fit, an undertaking by the person to dispose of other shares or assets owned by the person.

        (4)    An application under subsection (1) or (2) or an undertaking under subsection (3) may be made at any time within 3 years after the date on which the contravention occurred.

        (5)    Where an application for an order under subsection (1) or for a declaration under subsection (2) has been made, the Court may, if the Court determines it to be appropriate, make an order or a declaration by consent of all the parties to the proceedings, whether or not the Court has made the findings referred to in subsections (1) and (2).

I will not delay the Senate in committee at all, because this is a question of numbers. The minister and the chamber are well aware of my view that you can diminish industry specific laws if you strengthen regulators. I am of the view that the ACCC is too weak with respect to the Trade Practices Act and its provisions, and that strengthening that would improve competition in this country a great deal. I am of the view that with respect to these specific issues, the ACMA deserves to be strengthened and the Foreign Investment Review Board provisions need to be strengthened. Now and again I quarrel with Senator Brandis on issues, but I must say that his concerns and the concerns of other members of the committee with respect to the injunctive powers of the ACMA were well conceived. I certainly always respect Senator Brandis’s contribution in these areas, where he is very well informed.

I have the view that the government has moved quite a way in improving the injunction capacity of the ACMA, but my advice is that it needs to be stronger than it has been put to the chamber in government amendments, and so I have constructed a far stronger set of injunctive abilities. No doubt, the government will reject those and, therefore, I will not have the numbers, but they are on the record and I would urge the government, when the friendly debate is over, to look more deeply at this area and perhaps to consider whether any of the provisions I suggest or any strengthening of the injunctive rules that they are bringing in could be advanced.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I indicate, on behalf of the opposition, that we will be supporting Senator Murray’s amendment.

Question negatived.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

by leave—I move:

(1)    Schedule 1, item 8, page 7 (after line 17), at the end of section 61AB, add:

        (3)    For the purposes of this Division:

             (a)    each entity and any related entity of a commercial radio broadcasting licensee or a commercial television broadcasting licensee is deemed to be worth one point in accordance with section 61AC;

             (b)    related entity in this subsection has the same meaning as in section 26-35 of the Income Tax Assessment Act 1997.

(2)   Schedule 1, item 8, page 10 (after line 7), at the end of section 61AC, add:

        (3)    Despite anything to the contrary in this section, a commercial radio broadcasting licensee or commercial television broadcasting licensee which broadcasts a content of 20% or less comprising comment (where comment includes news, current affairs, issues of public opinion and talkback radio) in any 24 hour period, is deemed to not be worth one point for the purposes of this section.

The concern that is addressed in these amendments is an overarching control of the media by only a couple of interests over a period of time. Obviously one of the key issues is the voices test. I take on board that the minister has said that community radio stations have been extracted from the voices test. It would be handy if other media outlets that are really not as relevant are taken into account as to whether or not they constitute a point for determining a voice. You have to have five voices in metropolitan areas and four in regional areas, but some of these voices are such things—and they may be about to change—as racing stations and music stations. I do not believe they affect the political debate and the expression of opinion in the same way as TV stations and radio stations that have a strong content of talkback. This is about putting a greater control on that, and at least making a more serious statement about what voices are.

We have in the tax act a concise related entity test. We have related entity tests or associated entity tests in this legislation, but I believe the one from the tax act would go further. If we can chase people around looking for money and looking for holes in acts, then that is the one that would have a far greater intent of being able to determine what voices are in this. I believe this amendment goes to the matter of the legislation, but it is basically improving on issues that are there. The reason why we are trying to do that is to protect the democratic process, to protect the fourth estate and to make sure that not so much media outlets—media outlets will always have a role to play—but those who have major shareholdings in media outlets do not attain, on the centralisation of the media, inordinate power that I believe they should not have.

In America they have had problems in radio, where one organisation has ended up controlling such a raft of radio stations they have had to incur divestiture powers, which of course we do not have. This is an attempt at doing it. It is a shame that from the start of the debate, when we could have been dealing with these amendments, we have been filibustered. These amendments are for the strong consideration of the Senate.

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

These amendments have been moved by my colleague Senator Joyce. I think it appropriate that I say something about them, because I do listen to and have respect for Senator Joyce’s views on a number of matters. I think it appropriate that I put on record why the government disagrees with this particular approach whilst acknowledging his genuineness and his desire to achieve an outcome here that I do not think is achieved with these particular amendments. But I do think it is appropriate that I record it very briefly.

His item (1) inserts the definition of a related entity, which he has taken, as I understand it, from the Income Tax Assessment Act 1997 and put into the Broadcasting Services Act 1992. Item (2) of Senator Joyce’s amendment removes from the count of separate media groups in a licence area any radio or television licence with less than 20 per cent comment—defined as news, current affairs, issues of public opinion and talkback—in its programming.

In respect of the first matter, the amendment deals with how control is interpreted in the Broadcasting Services Act. If I may say so, Senator Joyce has correctly appreciated that this is a crucial issue in how effective the diversity test proposed in the bill will be. However, I believe that it is unnecessary. Section 6 of the Broadcasting Services Act currently has a definition of ‘associates’ which operates in a similar way to the definition of a ‘related entity’ that Senator Joyce proposes to add to the Broadcasting Services Act. Like the ‘related entity’ definition, the ‘associate’ definition covers relatives and business partners of a party. However, the ‘associate’ definition does go further and includes other parties who may act at the direction of or in concert with another. This enables the regulator to determine that an individual or company is in a position to control a broadcasting licence even if they do not directly own or control the licence or are not related to a person who does control the licence. This level of flexibility is necessary to ensure that the control provisions of the Broadcasting Services Act are both effective and rigorous.

Senator Joyce’s second proposed amendment would substantially affect the operation of the diversity protection mechanism in the bill by excluding a number of commercial broadcasting licences from the five-four test. Under the current cross-media rules, all commercial broadcasting licences are treated similarly in terms of licensing, regardless of their content. This is because, if you think about it for a minute, the level of influence of a broadcasting operation is subject to change and working out what is influence requires a subjective judgement. Senator Joyce’s proposed amendment proposes just one method of assessing influence, but of course there are others. For example, ratings also provide an indication of influence and clearly ratings like the format or content of a broadcaster can change rapidly. Also, they can be very popular. So it is very difficult to rely on something like ratings.

No matter how you structure a test, it means that a decision maker at some point—the chairman of the industry regulator, the ACMA, or I suppose the minister or a judge, if the issue were to be appealed—would have to make a subjective judgement about the level of influence or about whether a broadcaster meets the requirement to be a media voice under Senator Joyce’s test. But, more seriously, assuming you could get over those difficulties, the amendment opens up opportunities to fundamentally undermine the rigour of the five-four test, in this way. A commercial broadcasting licence that is outside the five-four test is a far more valuable one than if it is within it as it can be acquired by other operators, of course, without breaching the five-four rule. The amendment would therefore create a clear incentive for the owners of radio and television licences to possibly dumb down their services so they no longer counted for the voice test, enabling them to be sold to incumbents in the same market, in clear contravention of the five-four rule.

The amendment as drafted could also exclude television licensees who may not produce at least 4.8 hours of news and current affairs a day. Given that many Australians primarily rely on evening news as a main source of information, I think this really is an unintended outcome, although I repeat that I acknowledge the genuineness of Senator Joyce’s attempts with respect to the proposed amendment. But I think it has very significant and unacceptable risks.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

There is the assertion that it changes all parts of the broadcasting licence. This is dealing specifically with what would be assessed as a point when there is a merger in one of the regional or metropolitan markets. There has been a linkage made—and I do not presume it to be there in this amendment—that this changes everything in the broadcasting licensing section. What it really deals with is that, when you are counting up the points—which are the number of voices in the market—you will be counting only points that are relevant for that purpose, points that are relevant as putting out a predominant amount of content. 4.8 hours a day is not a lot. If you take news, current affairs, talkback and public opinion pieces, I think 4.8 hours a day is a fair indication of whether it is an effective voice or not.

If we do not deal with that, if we have something that puts out basically no content at all—a music station—when it comes to a merger, when they are going to cut down the numbers in a market, that would be counted to the same extent as an outlet that affects opinion predominantly. If that is the case then you could actually reduce the media because you would have the potential to have an outlet that is predominantly music staying in the market and one that actually affects opinion being merged or taken over.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I am sure the chamber has noticed that even the good Lord is shining his light on Senator Joyce with this amendment, and who am I to resist such a sign or omen? The Democrats will support these amendments.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I think these amendments are a very worthy attempt to strengthen an absolutely pathetic voices and diversity test. As Senator Joyce and others have made the point previously, how could you possibly give a radio station that plays music all day and has two or three minutes of news and current affairs per hour the same weighting as an empire that will be created under this legislation of PBL and Fairfax? How on earth could you seriously stand up in front of the Australian public and say, ‘These have the same influence’? This is a debate about influence and it is about the capacity to influence.

I accept Senator Fielding had a position and a point of view yesterday. I do not understand it and I cannot fathom it, but we might get a chance to have a quick chat about it during the debate. You cannot seriously argue that a music radio station or a radio station that does nothing but broadcast horseracing should carry the same weight as News Ltd if it buys Seven or Ten.

Senator Joyce is making a worthy attempt to give the diversity test some teeth. It is clear, on any objective analysis, that it is farcical to suggest that a racing station and an empire like PBL and Fairfax coming together could possibly have the same impact on the Australian community. So we will be supporting Senator Joyce’s amendments.

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

I thought it was worth very briefly placing on record why the government has not been persuaded that anything is added by some sort of qualitative test. Of course, working out how to attribute points or to exclude certain commercial licensees from being included in the objective test really does not assist.

The fundamental problem of a qualitative mechanism, such as media-specific public interest tests, really relates to its very subjectivity. We have seen the way in which a subjective approach to media can be seriously twisted and misrepresented, and it has bedevilled other jurisdictions around the world who have tried to grapple with something like media-specific public interest tests. Having subjective tests for media influence has two significant concerns. First of all, it creates great uncertainty for an industry that obviously has to plan, invest and operate within very stringent controls anyway—and will still do so should this legislation pass—as the outcome of the test and its consequences for mergers and acquisitions would be dependent on entirely subjective factors. No-one would know when they would ever be able to move or invest. Public confidence in the objectivity and the efficiency—‘efficacy’ is probably a better word—of media diversity protections would be dependent on the subjective judgement of the regulator or perhaps the minister. I do not want to do this. I certainly do not want to be making those kinds of subjective decisions.

Quite frankly, I think perceptions that assessments are dependent on subjective decisions erode public confidence in the objectivity and transparency of such a system. I am quite sure that my friend Senator Conroy would be in here two seconds after I approved any media mergers, complaining about influence and complaining about mates. Can you imagine that situation?

There are no generally accepted methods for measuring diversity or plurality or related parameters such as media concentration or share of voice across different markets. As a result, the criteria that would be used in assessing the public interest impact of a media merger would inevitably require a high degree of subjective judgement and would involve the potential for allegations of all sorts of political interference. There would be a subjective judgement by a single individual or a group of individuals, the regulator, the relevant minister, some other relevant legal framework or the judiciary.

Some submissions to the discussion paper Meeting the digital challenge: reforming Australia’s media in the digital age, which I released earlier, suggested that a voices test such as the proposed five-four test that is part of this package would not be adequate protection for diversity, because all operators would be treated as being equivalent regardless of size or perceived influence, which is the point raised by Senator Joyce and those on the opposition benches and crossbenches. The current framework actually takes the same approach and regulates entities according to licence type, not individual ratings. Therefore, all commercial television and radio licences are treated the same under the current rules.

The influence of an individual broadcaster cannot be measured directly by ratings, which certainly change over time. Some media may rate poorly but add significantly to diversity by providing audiences with the choices to access alternative viewpoints. No-one as yet, so far as I can tell, has devised a credible way of measuring the different levels of influences of newspapers, radio and television or, for example, for talk versus music formats in radio. A lot of young people really do enjoy radio, and I do not think we should be disparaging of the ways in which young people access news and talkback. I do not think the intention is to be disparaging. But I think it would be unwise and difficult to base media policy on such an uncertain and intangible quality.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I rise to note that Senator Joyce’s amendments and the Australian Greens amendment are the same. There is no point in trying to move them separately, but I note that the Australian Greens support these amendments and their intent.

Question put:

That the amendments (Senator Joyce’s) be agreed to.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

We are obviously not comfortable with the new rules and the diversity test. We would urge people to vote against them. We are keen to move onto other areas. We indicate that these new tests are not sufficient at all.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

As you know, Mr Temporary Chairman, on sheet 5075 revised I have the same amendment. Our view is that the package is much improved by the efforts of the Liberal and National senators, but it is still an unacceptable situation. We oppose the schedule.

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

The government will not be supporting the amendment, and I wish to place on record why. The amendment proposes to oppose schedule 1 and the removal of the cross-media laws in their entirety while supporting the retention in the bill of the removal of the foreign ownership restrictions and the imposition of local content requirements. The retention of the cross-media laws would ensure that Australia’s media industry simply remains unamended and, as I have said in earlier contributions, trapped in a 20th century world where radio, free-to-air television and old-fashioned newsprint are regarded as the only sources of news, entertainment and diversity of opinion.

For 20 years, Australia’s media companies have laboured under a very restrictive regime that actually rewards complacency and does not permit growth across platforms. We need to be very clear that the cross-media laws impose a regulatory straitjacket on the media industry, and of course that ultimately has costs for media companies and for consumers, who both expect Australia to be in the global environment for media and certainly expect media companies to be providing services they both expect and want.

The diversity goals of the cross-media rules can be achieved. They are very important. Let me acknowledge that: the diversity rules are very important. The diversity goals can be achieved in other, less punitive and restrictive ways. This is basically what the government has proposed. The continuation of such restrictions while foreign ownership controls are removed really makes no sense. That is a very puzzling position. It would prevent any local companies from responding to the competitive threat of new entrants, because they would be paralysed in their current structure, while foreigners could simply invest in such a way that they would provide a serious competitive threat. I welcome foreign investment—don’t get me wrong about that—but I simply do not think that you can have foreign investment at the expense of local media companies.

Imposing local content requirements—I will just specify it again, because it is a critical part of the package—on a regional radio sector that is prevented from expanding across media would also directly impact on the viability of that sector. We have to get a bit of reality into this debate. You cannot hobble a particular sector of the media so significantly with obligations and not at the same time give them some capacity to be able to attract investment, grow and take advantage of other new platforms in a way that is going to mean that ultimately consumers would not be disadvantaged. Consumers need to be advantaged by these arrangements, not disadvantaged. I believe that the set of protections that we have built into this test adequately does that.

It is also important to say that the removal of the cross-media restrictions will allow media companies to be able to continue to meet some of the obligations that they currently have to the broader Australian community. Yesterday I referred—and it is really worth saying—to the fact that as a community we really value Australian content. We impose—at some significant expense, as I am constantly reminded by free-to-air television broadcasters—a requirement that they must provide 55 per cent Australian content. It is simply unrealistic to expect that these kinds of companies, which are commercial operations, can be expected to continue to meet those kinds of obligations and other regulatory requirements in relation to content and standards—and Australian content in particular, which is a very important thing—and not have some idea about what is needed for them to be able to properly deploy their assets.

With the tests that have been put in—the cross-media changes, which are now very rigorous indeed, limiting the types of mergers, limiting the number of mergers and ensuring that there is local content—we just have to stop being timid about this or we will never move from a 20-year-old law made at a time when none of these other platforms and technological changes had been heard of or even thought of. The rules might have been appropriate for another era; they are certainly not appropriate for the 21st century in circumstances where we are also moving into the digital space and, in order to meet the needs of consumers, companies are going to need to be able to continue to grow and invest.

Question agreed to.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I move:

(1)    Page 37 (after line 21), after Schedule 1, insert:

Schedule 1A—Amendments to deal with abuse of market power, creeping acquisitions and a divestiture remedy in relation to media markets

Broadcasting Services Act 1992

1 After section 61AZK

Insert:

Subdivision G—Misuse of market power in a media market

61AZL Misuse of market power in a media market

        (1)    A corporation that has a substantial degree of power in a media market shall not take advantage of that power in that or any other marketfor the purpose of:

             (a)    eliminating or substantially damaging a competitor of the corporation or of a body corporate that is related to the corporation in that or any other market; or

             (b)    preventing the entry of a person into that or any other market; or

             (c)    deterring or preventing a person from engaging in competitive conduct in that or any other market.

        (2)    For the purposes of subsection (1):

             (a)    the reference in paragraph (1)(a) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors; and

             (b)    the reference in paragraphs (1)(b) and (c) to a person includes a reference to persons generally, or to a particular class or classes of persons.

        (3)    In determining for the purposes of this section whether a corporation has a substantial degree of market power in a media market, the Court will at least take into account the following principles:

             (a)    the threshold of a substantial degree of power in a market is lower than the former threshold of substantial control previously used in section 46 of the Trade Practices Act 1974; and

             (b)    the substantial market power threshold does not require a corporation to have an absolute freedom from constraint, it is sufficient if the corporation is not constrained to a significant extent by competitors or suppliers; and

             (c)    more than one corporation can have a substantial degree of power in a market; and

             (d)    evidence of a corporation’s behaviour in the market is relevant to a determination of substantial market power.

        (4)    If:

             (a)    a body corporate that is related to a corporation has, or 2 or more bodies corporate each of which is related to the one corporation together have, a substantial degree of power in a media market; or

             (b)    a corporation and a body corporate that is, or a corporation and 2 or more bodies corporate each of which is, related to that corporation, together have a substantial degree of power in a media market;

                 the corporation shall be taken for the purposes of this section to have a substantial degree of power in that market.

        (5)    In determining for the purpose of this section whether a corporation has a substantial degree of power in a media market, the Court may consider the corporation’s degree of power in a market to include any market power arising from any contracts, arrangements, understandings or covenants, whether formal or informal, which the corporation has entered into with other entities.

        (6)    In determining for the purposes of this section the degree of power that a body corporate or bodies corporate has or have in a market, the Court shall have regard to the extent to which the conduct of the body corporate or of any of those bodies corporate in that market is constrained by the conduct of:

             (a)    competitors, or potential competitors, of the body corporate or of any of those bodies corporate in that market; or

             (b)    persons to whom or from whom the body corporate or any of those bodies corporate supplies or acquires goods or services in that market.

        (7)    In determining for the purposes of this section whether a corporation:

             (a)    has a substantial degree of power in a media market; or

             (b)    has taken advantage of that power for the purpose described in paragraph (1)(a), (b) or (c);

                 the Court may have regard to the capacity of the corporation, relative to other corporations in that or any other market, to sell in that or any other market a good or service at a price below the cost to the corporation of producing or acquiring the good or supplying the service.

        (8)    In this section:

             (a)    a reference to power is a reference to market power;

             (b)    a reference to a market is a reference to a market for goods or services; and

             (c)    a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.

        (9)    Without extending by implication the meaning of subsection (1), a corporation shall not be taken to contravene that subsection by reason only that it acquires plant or equipment.

      (10)    This section does not prevent a corporation from engaging in conduct that does not constitute a contravention of any of the following sections, namely sections 45, 45B, 47 and 50, of the Trade Practices Act 1974 by reason that an authorization is in force or by reason of the operation of section 93 of the Trade Practices Act 1974.

      (11)    A corporation may be taken to have taken advantage of its power for a purpose referred to in subsection (1) notwithstanding that, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the corporation or of any other person or from other relevant circumstances.

61AZM Prohibition of acquisitions that would result in a substantial lessening of competition in a media market

        (1)    A corporation must not directly or indirectly:

             (a)    acquire shares in the capital of a body corporate; or

             (b)    acquire any assets of a person;

                 if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a media market.

        (2)    A person must not directly or indirectly:

             (a)    acquire shares in the capital of a corporation; or

             (b)    acquire any assets of a corporation;

                 if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a media market.

        (3)    Without limiting the matters that may be taken into account for the purposes of subsections (1) and (2) in determining whether the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a media market, the following matters must be taken into account:

             (a)    the actual and potential level of import competition in the market;

             (b)    the height of barriers to entry to the market;

             (c)    the level of concentration in the market;

             (d)    the degree of countervailing power in the market;

             (e)    the likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins;

              (f)    the extent to which substitutes are available in the market or are likely to be available in the market;

             (g)    the dynamic characteristics of the market, including growth, innovation and product differentiation;

             (h)    the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor;

              (i)    the nature and extent of vertical integration in the market.

        (4)    Where:

             (a)    a person has entered into a contract to acquire shares in the capital of a body corporate or assets of a person;

             (b)    the contract is subject to a condition that the provisions of the contract relating to the acquisition will not come into force unless and until the person has been granted an authorization to acquire the shares or assets; and

             (c)    the person applied for the grant of such an authorization before the expiration of 14 days after the contract was entered into;

                 the acquisition of the shares or assets shall not be regarded for the purposes of this Act as having taken place in pursuance of the contract before:

             (d)    the application for the authorization is disposed of; or

             (e)    the contract ceases to be subject to the condition;

                 whichever happens first.

        (5)    For the purposes of subsection (4), an application for an authorization shall be taken to be disposed of:

             (a)    in a case to which paragraph (b) of this subsection does not apply—at the expiration of 14 days after the period in which an application may be made to the Tribunal for a review of the determination by the Commission of the application for the authorization; or

             (b)    if an application is made to the Tribunal for a review of the determination by the Commission of the application for the authorization—at the expiration of 14 days after the date of the making by the Tribunal of a determination on the review.

        (6)    In this section:

market means a substantial market for goods or services in:

             (a)    Australia; or

             (b)    a State; or

             (c)    a Territory; or

             (d)    a region of Australia.

        (7)    For the purposes of the application of this section in relation to a particular corporation, an acquisition by the corporation shall be deemed to have or to be likely to have the effect of substantially lessening competition in a media market if that acquisition and any one or more of the other acquisitions by the corporation or a body corporate related to the corporation in that or any other market during the previous ten years together have or are likely to have that effect.

61AZN Pecuniary penalties

        (1)    If the Court is satisfied that a person:

             (a)    has contravened section 61AZL or 61AZM

             (b)    has attempted to contravene either provision;

             (c)    has aided, abetted, counselled or procured a person to contravene either provision;

             (d)    has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene either provision;

             (e)    has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of either provision; or

              (f)    has conspired with others to contravene either provision;

                 the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under this Part.

        (2)    The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed $10,000,000 for each other act or omission to which this section applies.

        (3)    The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed $500,000 for each act or omission to which this section applies.

61AZO Injunctions

Where, on the application of the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:

          (a)   a contravention of any of section 61AZL or 61AZM;

          (b)   attempting to contravene either provision;

          (c)   aiding, abetting, counselling or procuring a person to contravene either provision;

          (d)   inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene either provision;

          (e)   being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of either provision; or

           (f)   conspiring with others to contravene either provision;

the Court may grant an injunction in such terms as the Court determines to be appropriate.

61AZP Actions for damages

        (1)    A person who suffers loss or damage as a result of conduct of another person that contravened section 61AZL or 61AZM may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.

        (2)    An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct arose.

61AZQ Divestiture for abuses of market power and anti-competitive mergers

        (1)    The Court may, on the application of the Commission or any other person, if it finds that a corporation has contravened section 61AZL or 61AZM, by order, give directions for the purpose of securing:

             (a)    the disposal or divestiture of shares or assets acquired in contravention of section 61AZM; or

             (b)    the reorganisation or division of the corporation into separate and distinct entities including directions for the disposal or divestiture of all or any of the shares in or assets of the corporation to facilitate the reorganisation or division of the corporation.

61AZR Definitions

In this Subdivision:

the Court or the Federal Court means the Federal Court of Australia.

Commission means the Australian Competition and Consumer Commission established by section 6A of the Trade Practices Act 1974.

authorization means an authorization under Division 1 of Part VII of the Trade Practices Act1974 granted by the Commission or by the Tribunal on a review of a determination of the Commission.

Tribunal means the Australian Competition Tribunal established under the Trade Practices Act 1974, and includes a member of that Tribunal or a Division of that Tribunal performing functions of that Tribunal.

The minister put the position that you cannot be subjective. We will take that on board. This amendment gives the capacity to move away from a completely ‘written in the sand’ type of restriction to something that deals with greater powers for those who can have more latitude in making their decision.

One point was clearly made all through the committee hearings: the powers of the ACCC and the ACMA in their current form do not have the capacity to be an effective arbiter of mergers and acquisitions in this process. The fundamental fear that must be dealt with is: what if we get this wrong? What that means is this: if, after passage of this legislation, we find that there is an overcentralisation of the Australian media market which affects our democratic process, there are no powers in this parliament to bring about a divestiture. That is the crucial issue. If there is only a 20 per cent chance that that should come about, then surely we should be bringing about the powers to actually deal with that. Surely we should be able to have the capacity, like they have in the United States of America, to break up an organisation that has become too powerful and that has started to challenge the role of the government.

This amendment deals with the aspect of controls against an organisation that might challenge the role of the parliament. It gives that power in a great breadth so that decisions can be fleshed out and considered. An issue brought up over and over again during the inquiry was that the powers of the ACCC and ACMA are no good once the egg is scrambled. Once an inherent oligopoly or monopoly is present in the market, you cannot retract from that position.

I know this amendment is a magnum opus, but this is a terribly important piece of legislation. The amendment deals with a range of things. On the misuse of market power, currently, if you want to set up a new newspaper there is the capacity for opposing newspapers to just price you out of the market on advertising to put you out of business. When we talk about the ability of entry and exit into the print media, it is just not there. Obviously there is no free entry and exit into the television or radio markets. They are regulated. The government protects them by regulation. It is not a free market. That is why we must be so considerate of this.

You have to remember that the benchmark return of the main media companies in Australia is way beyond what it is overseas. That is because of the inherent protections they have. If we were to remove all forms of regulation in television so you could open up new television licences then we probably would not require this as much. But those protections stay in place. We have to be ever more cautious of making sure that we have the regulatory mechanisms to balance up our own regulatory mechanisms, unless we are envisaging removing all regulatory mechanisms on radio and TV—and I know that that is not the case. We cannot change the Trade Practices Act in this piece of legislation, so we must insert these powers on the misuse of market power so you cannot predatory price someone out of the market.

We must put in place controls for the prohibition of acquisitions that would substantially lessen competition in market. We must have injunctions, pecuniary penalties and, most importantly, that sword of Damocles, if you have everything wrong—the ability to have divestiture powers. That is the parachute that the Australian public want—the parachute whereby, if the intent of the Senate is wrong, we have the mechanism to deal with the issue. It is vitally important, because if we do not and if we get a monopoly that comes into play in Australia, that is it, you are stuck with it. If we do not have the powers now or we are scared, for want of a better word, to take on the major media houses now in trying to scale down some of the things in this bill, then you will be absolutely terrified once they actually arrive at their position of a monopoly or oligopoly of trying to take them on.

We could have the case where the power of this parliament is secondary in our nation to some major media organisation. That is not what we want. America have the benefit of the Clayton act and the Sherman act. They have the benefit of acts to deal with the powers of corporations that challenge the role of government. In Australia we do not have them. The most effective mechanism for controlling the nation is controlling the media. When there is a revolution, they do not announce it over the internet; they take over the radio station, the paper and the television stations. You do not put a Google search out for ‘change in democracy’. Those main mastheads of media are still as powerful as they ever were. That is why it is so important that we deal with this in a cognisant way. That is why, if we are going to go through with this legislation, we must have these powers in there. Otherwise, we are loading the gun for Australia for 10 years time. I do not think that is an honourable outcome for this Senate.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I too will be very brief, because we are under the guillotine. This is an excellent effort to deal with a complex problem. It would, of course, be much better in the substantive Trade Practices Act, but the fact is that that act does not cover off these areas of concern and we have no means to amend that act in this debate. This is an excellent contribution to a very real problem which was recognised by the Senate Economics References Committee in March 2004, and the Democrats will support it.

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

I will be very brief, given the time. I would like, first of all, to assure Senator Joyce that the government acknowledges his concerns about the need to ensure the right balance in the media ownership package. Indeed, we share those concerns. It is important that we find the balance in providing the scope for media companies to respond to emerging pressures but at the same time respond to concerns about competition, diversity and local content.

The government opposes this amendment because it would provide a significant duplication of the provisions already in the Trade Practices Act but out of context with the rest of the Trade Practices Act. The government has always seen the media ownership provisions as being complementary to the normal competition provisions in the TPA. To conduct a successful merger in any market, a set of companies would need to pass the five-four, the two out of three test and the normal competition rules that provide that a merger must not result in a substantial lessening of competition. There will also, of course, be significant protections of diversity and competition in media markets.

We have been assured that all the necessary powers with regard to the competition test are already contained in the Trade Practices Act. These are a matter for the ACCC, the expert in dealing with competition issues. It is not appropriate, in our view, to take a small part of the Trade Practices Act and insert it into the Broadcasting Services Act, because it will surely lead to a range of unintended consequences. Neither is this amendment necessary in order to achieve Senator Joyce’s desired outcomes, in my view.

The proposed amendment also includes a divestiture provision for abuses of market power. Again, this is not needed. The media ownership rules already provide for strong divestiture powers for ACMA where an unacceptable media diversity situation exists. The government is also amending the bills to provide an injunctive power for ACMA to prevent mergers from occurring, if they were to result in an unacceptable media diversity situation. For those reasons, we do not think the amendment is necessary.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

On Senator Joyce’s behalf I am obviously disappointed by Senator Coonan’s response. I think Senator Joyce has made another excellent attempt to go to the nub of the problem with this legislation. Probably the only thing I would say, Senator Joyce, is that I am genuinely surprised that you did not include the public interest test as an addition, because that is the important part. It still only leaves competition, which—as we have discussed at length with Mr Samuel and amongst ourselves in the committee—is not sufficient to protect the diversity of opinion. No marketing voices can easily be identified. But I think it is a very worthy attempt to bring to bear a more rigorous examination of merger activity, particularly in this field. Therefore, I indicate that the opposition will be supporting the amendment.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I indicate that the Australian Greens wholeheartedly support this amendment. We think that it is entirely appropriate to recognise the misuse of market power. I think Senator Joyce has gone a long way to doing that in his amendment, and we support it.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

The reason for the duplication is that there is a belief that the ACCC powers do not go far enough. Because we are not going to get the Trade Practices Act brought in here today so we that can change those powers, we have to try to put them into this act. That is why that is the case. In relation to the significant lessening of the competition test that has been brought up, the fact is that there is not a significant lessening of competition unless you can put up prices without affecting your demand, and I imagine that would be advertising revenue. The only time that really comes about is when there is a monopoly or almost a monopoly in the market. If that happens in the media market, we will have a major problem.

I acknowledge what Senator Conroy said about the public interest test. As I said, this is a magnum opus. I did not have the capacity to include and define a public interest test in it, with the time that we had available. It would really need to go a committee of all of its own, and that would need to come up with recommendations as to what a public interest test is.

Question put:

That the amendment (Senator Joyce’s) be agreed to.

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

by leave—I move the local content requirements that are contained in government amendments (13) to (21) on sheet PZ245; amendments (1) to (12) on sheet PZ249; amendment (1) on sheet QS393; amendment (2) on sheet QS391; amendments (1) to (3) on sheet QS395, which are the amendments to government amendment (21) on sheet PZ245; and amendment (1) on sheet QS396, which is the amendment to government amendment(1) on QS393:

Sheet PZ245

(13)  Schedule 2, page 38 (after line 7), after item 1, insert:

1A After paragraph 3(1)(e)

Insert:

           (ea)    to promote the availability to audiences throughout Australia of television and radio programs about matters of local significance; and

(14)  Schedule 2, item 7, page 51 (line 7), before “has”, insert “(except in sections 61CR and 61CS)”.

(15)  Schedule 2, item 7, page 52 (line 29), after “Division”, insert “(other than sections 61CR and 61CS)”.

(16)  Schedule 2, item 7, page 52 (line 30), after “Division”, insert “(other than sections 61CR and 61CS)”.

(17)  Schedule 2, item 7, page 56 (after line 29), at the end of section 61CH, add:

Occurrence of trigger event when ACMA’s decision is pending

        (7)    If:

             (a)    a commercial radio broadcasting licensee gives the ACMA a draft local content plan under section 61CF as the result of the occurrence of a trigger event for the licence; and

             (b)    another trigger event for the licence occurs before the ACMA makes a decision under subsection (1) in relation to the plan;

                 then:

             (c)    the ACMA is taken to have refused to approve the plan; and

             (d)    subsections (5) and (6) do not apply to that refusal.

(18)  Schedule 2, item 7, page 58 (after line 21), at the end of section 61CM, add:

Occurrence of trigger event when ACMA’s decision is pending

        (7)    If:

             (a)    under section 61CK or 61CL, a commercial radio broadcasting licensee gives the ACMA a draft variation of an approved local content plan; and

             (b)    a trigger event for the licence occurs after the receipt of the variation but before the ACMA makes a decision under subsection (1) in relation to the variation;

then:

             (c)    the ACMA is taken to have refused to approve the variation; and

             (d)    subsections (5) and (6) do not apply to that refusal.

(19)  Schedule 2, item 7, page 59 (line 11), omit “Investigations about other”, substitute “Other”.

(20)  Schedule 2, item 7, page 59 (after line 24), at the end of section 61CR, add:

        (4)    This section does not limit the powers conferred on the Minister by section 61CS.

(21)  Schedule 2, item 7, page 59 (after line 24), at the end of Subdivision D, add:

61CS Minister may direct the ACMA to impose licence conditions relating to local content

        (1)    The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose conditions requiring regional commercial radio broadcasting licensees to broadcast programs about matters of local significance.

        (2)    The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose one or more specified conditions requiring regional commercial radio broadcasting licensees to broadcast programs about matters of local significance.

        (3)    The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose conditions requiring a specified regional commercial radio broadcasting licensee to broadcast programs about matters of local significance.

        (4)    The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose one or more specified conditions requiring a specified regional commercial radio broadcasting licensee to broadcast programs about matters of local significance.

        (5)    The ACMA must comply with a direction under subsection (1), (2), (3) or (4).

        (6)    This section does not limit the powers conferred on the ACMA by section 43.

61CT Regular reviews of local content requirements

        (1)    At least once every 3 years, the Minister must cause to be conducted a review of the following matters:

             (a)    the operation of section 43B;

             (b)    the operation of this Division;

             (c)    the operation of paragraph 8(2)(c) of Schedule 2;

             (d)    whether section 43B should be amended;

             (e)    whether this Division should be amended;

              (f)    whether paragraph 8(2)(c) of Schedule 2 should be amended.

        (2)    For the purposes of facilitating the conduct of a review under subsection (1), the ACMA must make available information about regional commercial radio broadcasting licensees’ compliance with:

             (a)    licence conditions imposed as a result of section 43B; and

             (b)    licence conditions imposed as a result of an investigation directed under section 61CR; and

             (c)    licence conditions imposed as a result of a direction under section 61CS; and

             (d)    the licence condition set out in paragraph 8(2)(c) of Schedule 2.

        (3)    The Minister may give the ACMA a written direction requiring the ACMA to make available specified information for the purposes of facilitating the conduct of a review under subsection (1).

        (4)    The ACMA must comply with a direction under subsection (3).

        (5)    The Minister must cause to be prepared a report of a review under subsection (1).

        (6)    The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the report.

Sheet PZ249

(1)    Schedule 2, item 7, page 50 (line 24), omit paragraph (a) of the definition of designated local content program in section 61CA, substitute:

             (a)    a news bulletin; or

           (aa)    a weather bulletin; or

(2)    Schedule 2, item 7, page 50 (after line 28), after the definition of draft local content plan in section 61CA, insert:

eligible local news bulletins means local news bulletins that meet the following requirements:

             (a)    the bulletins are broadcast on at least 5 days during the week;

             (b)    the bulletins broadcast on each of those days have a total duration of at least 12.5 minutes;

             (c)    the bulletins are broadcast during prime-time hours;

             (d)    the bulletins adequately reflect matters of local significance;

             (e)    none of the bulletins consists wholly of material that has previously been broadcast in the licence area concerned.

eligible local weather bulletins means local weather bulletins that meet the following requirements:

             (a)    the bulletins are broadcast on at least 5 days during the week;

             (b)    the bulletins are broadcast during prime-time hours.

(3)    Schedule 2, item 7, page 50 (line 29) to page 51 (line 1), omit the definition of eligible local news and weather bulletins in section 61CA.

(4)    Schedule 2, item 7, page 51 (after line 14), after the definition of metropolitan licence area in section 61CA, insert:

news bulletin means a regularly scheduled news bulletin.

(5)    Schedule 2, item 7, page 51 (lines 15 and 16), omit the definition of news and weather bulletin in section 61CA.

(6)    Schedule 2, item 7, page 51 (after line 29), after the definition of trigger event in section 61CA, insert:

weather bulletin means a regularly scheduled weather bulletin that is transmitted:

             (a)    as a stand-alone bulletin; or

             (b)    in conjunction with a news bulletin.

(7)    Schedule 2, item 7, page 53 (after line 14), after paragraph 61CD(a), insert:

           (aa)    minimum service standards for local weather; and

(8)    Schedule 2, item 7, page 53 (line 26), omit “and weather”.

(9)    Schedule 2, item 7, page 53 (lines 29 and 30), omit “and weather”.

(10)  Schedule 2, item 7, page 54 (after line 4), after subsection 61CE(2), insert:

Local weather

     (2A)    For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for local weather during a particular week if, during that week, the number of eligible local weather bulletins broadcast by the licensee is at least the local weather target number.

      (2B)    For the purposes of subsection (2A), the local weather target number is:

             (a)    5; or

             (b)    if the Minister, by legislative instrument, declares that a greater number is the local weather target number—the greater number.

(11)  Schedule 2, item 7, page 57 (after line 13), after subparagraph 61CK(1)(b)(i), insert:

                 (ia)    paragraph 61CE(2B)(b); or

(12)  Schedule 2, item 7, page 59 (after line 4), after section 61CP, insert:

61CPA Licensee must submit annual compliance report

        (1)    This section applies if an approved local content plan for a regional commercial broadcasting radio licence was in force during the whole or a part of a financial year.

        (2)    The regional commercial radio broadcasting licensee must, within 3 months after the end of the financial year, give the ACMA a report about the licensee’s compliance with the approved local content plan during the whole or the part, as the case may be, of the financial year.

        (3)    A report under subsection (2) must:

             (a)    be in a form approved in writing by the ACMA; and

             (b)    set out such information as the ACMA requires.

Sheet QS393

(1)    Schedule 2, item 3, page 40 (after line 10), after section 43B, insert:

43C Local content—regional commercial radio broadcasting licences

        (1)    The ACMA must ensure that, at all times on and after 1 January 2008, there is in force under section 43 a condition that has the effect of requiring the licensee of a regional commercial radio broadcasting licence to broadcast, during daytime hours each business day, at least the applicable number of hours of material of local significance.

Material of local significance

        (2)    The condition must define material of local significance for the purposes of the condition. If a regional commercial radio broadcasting licensee is required to comply with section 61CD, the definition of material of local significance must be broad enough to cover material that the licensee must broadcast in order to comply with that section.

Applicable number

        (3)    For the purposes of the application of subsection (1) to a regional commercial radio broadcasting licence, the applicable number is:

             (a)    4.5; or

             (b)    if the Minister, by legislative instrument, declares that another number is the applicable number for regional commercial radio broadcasting licences generally—the other number; or

             (c)    if:

                   (i)    the Minister, by legislative instrument, declares that another number is the applicable number for a specified class of regional commercial radio broadcasting licences; and

                  (ii)    the regional commercial radio broadcasting licence is included in that class;

                      the other number.

        (4)    The Minister must not declare a number under paragraph (3)(b) or subparagraph (3)(c)(i) that is less than 4.5 unless:

             (a)    the Minister has caused to be conducted a review of:

                   (i)    whether a declaration should be made under paragraph (3)(b) or subparagraph (3)(c)(i) specifying a number that is less than 4.5; and

                  (ii)    if so, the content of the declaration; and

             (b)    the Minister has caused to be prepared a report of the review; and

             (c)    the declaration made by the Minister is in accordance with a recommendation in the report.

Section 43 powers etc.

        (5)    To avoid doubt, this section does not create any obligations under subsection 43(2) that would not exist apart from this section.

        (6)    Subsection 43(5) does not apply to the condition.

        (7)    This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.

Definitions

        (8)    In this section:

daytime hours means the hours:

             (a)    beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and

             (b)    ending at 6 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

metropolitan licence area means:

             (a)    a licence area in which is situated the General Post Office of the capital city of:

                   (i)    New South Wales; or

                  (ii)    Victoria; or

                 (iii)    Queensland; or

                 (iv)    Western Australia; or

                  (v)    South Australia; or

             (b)    the licence area known as Western Suburbs Sydney RA1.

regional commercial radio broadcasting licence means a commercial radio broadcasting licence that has a regional licence area.

regional licence area means a licence area that is not a metropolitan licence area.

Sheet QS391

(2)    Schedule 2, item 7, page 51 (lines 8 to 14), omit the definition of metropolitan licence area, substitute:

metropolitan licence area means:

             (a)    a licence area in which is situated the General Post Office of the capital city of:

                   (i)    New South Wales; or

                  (ii)    Victoria; or

                 (iii)    Queensland; or

                 (iv)    Western Australia; or

                  (v)    South Australia; or

             (b)    the licence area known as Western Suburbs Sydney RA1.

Sheet QS395

Amendments to government amendments on sheet PZ245

(1)    Amendment (21), paragraph 61CT(1)(a), omit “section 43B”, substitute “sections 43B and 43C”.

(2)    Amendment (21), paragraph 61CT(1)(d), omit “section 43B”, substitute “sections 43B and 43C”.

(3)    Amendment (21), paragraph 61CT(2)(a), after “section 43B”, insert “or 43C”.

Sheet QS396

Amendment to government amendments on Sheet QS393

(1)    Amendment (1), omit subsection 43C(4), substitute:

        (4)    Before 30 June 2007, the Minister must cause to be conducted a review of:

             (a)    whether:

                   (i)    a declaration should be made under paragraph (3)(b); or

                  (ii)    one or more declarations should be made under subparagraph (3)(c)(i); and

             (b)    the number or numbers that should be specified in the declaration or declarations concerned; and

             (c)    in the case of a declaration or declarations under subparagraph (3)(c)(i)—the class or classes that should be specified in the declaration or declarations concerned.

     (4A)    The Minister must cause to be prepared a report of a review under subsection (4).

      (4B)    The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the report.

      (4C)    Before the end of whichever of the following periods ends first:

             (a)    the period of 15 sitting days of the House of Representatives after the completion of the report;

             (b)    the period of 15 sitting days of the Senate after the completion of the report;

                 the Minister must:

             (c)    either:

                   (i)    make a declaration under paragraph (3)(b); or

                  (ii)    make one or more declarations under subparagraph (3)(c)(i); and

             (d)    cause a copy of each such declaration to be laid before each House of the Parliament in accordance with section 38 of the Legislative Instruments Act 2003.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I would like to question the minister on the trigger events. It has been suggested to me that an internal corporate restructure, which does not really impact upon the effective ownership of a radio station, could be seen to be a trigger event. It has been suggested to me that the third paragraph of ‘trigger events’, which talks about controllers, could be a trigger event. I indicate to the minister that I am not going to vote against this amendment, even if the answer is not what I want, but I do think that if an internal corporate restructure does trigger the events that require these happenings to happen it really is something the government should look a bit more closely at.

I understand that time is brief, and I do not want to hold the Senate up unnecessarily, so I will ask a couple of questions at the same time, if I may. Do the requirements for local news and weather happen from now, or only upon the happening of a trigger event, meaning that if the ownership remains permanent—say, for the next 20 years—there will be no mandatory requirement for local news and weather and community announcements? I only raise this, Minister, because as you know I do have some concern at the mandating of these requirements.

I concede that most of the radio stations that I am familiar with are in Queensland. But I did sit through the committee hearings and questioned all of the radio station witnesses that came before us. And they represented the corporate giants, one might call them; they represented regional commercial radio; and they represented some country stations that were not in the regional grouping. Members of the committee will recall we had evidence by telephone from a representative of a family which owns one or two radio stations in country New South Wales.

As I understand it, and my local knowledge of the Queensland market is that, almost all of them, certainly stations in little places like Longreach and Mount Isa—although I do not think that Mount Isa would like to be called little—and stations like 4KZ in Innisfail, which transmits out to Karumba, have local news. I know this because, fortuitously, they occasionally ring me when they want a clever comment or, rather, a serious comment, one that does put the case.

They all do have weather and, as I said in my speech in the second reading debate, I am aware that whenever there is a cyclone around, which is most important up where I come from, the local stations and the ABC will stay on air 24 hours a day as they are needed. They will do that for number of reasons: they are good corporate citizens; they are local. But they also know that that is what their listeners want and, as I have said a number of times, what the listeners want is what the advertisers want and, if the advertisers are unhappy, then they do not pay the money and the radio station goes bust.

I mentioned earlier, Minister, reports in today’s media suggest that some of the larger corporate chains or networks will, if this goes through, simply be unviable and will be losing money. They have particularly nominated, as I mentioned earlier, 4AM in Mareeba and the Roma radio station. I would be very distressed if anything we did in this chamber led to the Atherton Tablelands area and the south-western Queensland area having one fewer voice, one fewer radio station. That has always been my concern. It is a concern I repeat because, even though they may not be perfect at the moment and perhaps do not have as much localism as I might like, at least they are there. If we do things that cause them to permanently lose money, they are going to shut down and we are going to have nothing. So something bad is better than nothing at all. They are the concerns I have.

So, Minister, to draw together the questions I have asked: does an internal corporate rearrangement represent a trigger event? And, if so, is that what the government intended? And is that good policy? And, if it is not, perhaps the minister might look at it some other time. As I say, I am not going to vote against the amendment today, but I do think it needs to be aired. The other thing is: what are the time lines for the introduction of the news and weather?

While I am on my feet I will also ask this of the minister: I raised the issue of community radio, to which the minister gave a very full and comprehensive reply, but not directly on the following issue. I am not asking the minister to commit to doing it, but could I get the minister to say that the government might have a look at the restrictions on community radio, at the appropriate time?

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

Thank you, Senator Macdonald, for that series of questions. I will be very brief, given where we are at in the schedule. On your principal question, which related to corporate restructure: it depends, of course, on what is a trigger event, and the intention is to ensure that a trigger event is not avoided. It is all tied up with the whole notion of a change of control. So, obviously, with restructures it will always depend on the circumstances, and I could not possibly answer every combination or permutation that might come up. That is why the regulator is there.

I did say yesterday, and I think it is very important that small licence holders know that, as I have said very clearly, I intend to look at the impact on smaller family-owned licensees as part of the ACMA review on local content. I did give a very long answer previously in relation to how the local news, weather and other announcements would operate.

It is very clear that there is no immediate obligation on anyone to do anything. We will, if these bills pass, be imposing a requirement, but it will be deferred until there can be a proper review to establish the right balance and proper benchmarks. That should give a level of comfort to anyone listening to this debate that we are interested in hearing about the impact of these requirements and how they might impact on a particular business case.

I anticipate that there will certainly be some small operators that may require to be exempted from some of the requirements. It is going to come back to the parliament because if this mandatory requirement is altered at all then it must be done by way of a ministerial direction, a disallowable instrument. I fully intend it to be reviewed in a transparent, accountable and very open way.

Michael Ronaldson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I share some of the concerns of Senator Ian Macdonald. We certainly do not want to throw the baby out with the bathwater. I do intend to support these amendments but I am relieved to hear the minister’s comments in relation to her concern to make sure we get this aspect right.

Question agreed to.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

As there is a virtually identical item from the Democrats, and because we only have 15 minutes to go, I withdraw Opposition item (2) on sheet 5065 to oppose item 6 of schedule 2.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (3) on sheet 5086:

(3)    Schedule 2, item 7, page 54 (line 31) to page 55 (line 2), omit subsection 61CE(6), substitute:

        (6)    For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for designated local content programs during a particular week if, during that week, the amount of local content programs is at least:

             (a)    the local content program target amount; or

             (b)    if the average weekly amount of local content broadcast under the licence during the benchmark year is greater than the local content program target number—that amount.

        (7)    For the purposes of subsection (6), the local content program target amount is:

             (a)    4 ½ hours in every 24 hour period; or

             (b)    if the Minister, by legislative instrument, declares that a greater amount is the local content program target amount—the greater amount.

Question negatived.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I withdraw Democrat item (2) on sheet 5075 revised to oppose the entirety of schedule 2. Therefore the Democrats oppose items 4 to 6 in schedule 2 in the following terms:

(3)    Schedule 2, items 4, 5 and 6, page 40 (lines 11 to 17), TO BE OPPOSED.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I indicate that, given the failure of the other amendments to try and toughen up the current bill, Labor will be supporting Senator Murray’s amendment.

George Brandis (Queensland, Liberal Party) Share this | Link to this | Hansard source

The question is that items 4 to 6 in schedule 2 stand as printed. The ayes have it.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I am sorry, but I missed that. The motion was that the schedule stand as printed. The government called aye—is that correct?

The Temporary Chairman:

Yes.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I did not hear that. We called no and we are saying that the noes have it.

The Temporary Chairman:

It has been called.

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

I speak pretty loudly.

The Temporary Chairman:

I called it for the ayes. I did not hear anyone for the noes.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

That is why I stood to correct the record. The noes have it. I am asking for a division and I have a voice attached to it.

The Temporary Chairman:

All right. I think I should put the question again just for clarity. The question is that items 4 to 6 of schedule 2 stand as printed.

Question put.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

The Democrats oppose schedule 2 in the following terms:

(4)    Schedule 2, page 40 (line 20) to page 49 (line 31), Division 5B, TO BE OPPOSED.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

The question is that schedule 2, item 7, division 5B, stand as printed.

Question put.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Mr Chairman, I withdraw Democrat amendment (5) on sheet 5075 revised.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

This would be a timely opportunity to remind fellow senators that, in the consequent votes, anybody who has a pecuniary interest which is not declared should declare it now.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

That is not required. The time allocated for the consideration of the committee stage of these bills has expired.

BROADCASTING LEGISLATION AMENDMENT (DIGITAL TELEVISION) BILL 2006

Bill—by leave—taken as a whole.

Government amendment (3) on sheet PZ244—

(3)    Schedule 1, item 4, page 3 (lines 16 to 18), to be opposed.

The question is that schedule 1, item 4 stand as printed.

Question negatived.

Government amendments (1), (2) and (4) to (61) on sheet PZ244—

(1)    Schedule 1, item 1, page 3 (line 9), at the end of the definition of anti-siphoning event, add “For this purpose, disregard subsections 115(1AA) and (1B).”.

(2)    Schedule 1, page 3 (after line 11), after item 2, insert:

2A  Before section 27

Insert:

26B  Licence area plans—multi--channelled national television broadcasting services

        (1)    Licence area plans are not required to deal with SDTV multi-channelled national television broadcasting services.

        (2)    Subsection (1) ceases to have effect at the end of the simulcast period, or the simulcast-equivalent period, for the coverage area concerned.

        (3)    In this section:

SDTV multi-channelled national television broadcasting service has the same meaning as in Schedule 4.

simulcast-equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

(4)    Schedule 1, page 4 (after line 13), after item 9, insert:

9A  Clause 2 of Schedule 4

Insert:

simulcast-equivalent period, in relation to a national television broadcasting service, has the meaning given by clause 4D.

9B  Before clause 5 of Schedule 4

Insert:

4D  Simulcast-equivalent period for a coverage area

If there is no simulcast period for a coverage area in relation to a national television broadcasting service, the ACMA may, by legislative instrument, declare that a specified period is the simulcast-equivalent period for the coverage area.

(5)    Schedule 1, item 18, page 6 (line 6), at the end of the heading to clause 41H, add “etc.”.

(6)    Schedule 1, item 18, page 6 (line 9), after “period”, insert “, or a simulcast-equivalent period,”.

(7)    Schedule 1, page 9 (after line 12), after item 28, insert:

28A  Variation of national television conversion scheme

        (1)     This item applies to a variation by the ACMA of the national television conversion scheme if:

             (a)  the variation deals with transitional and/or consequential matters in connection with the amendments made by this Schedule; and

             (b)   the variation is made within 30 days after the commencement of this item.

(2)    Clause 33 of Schedule 4 to the Broadcasting Services Act 1992 does not apply to the variation.

(3)    Section 17 of the Legislative Instruments Act 2003 does not apply to the variation.

(4)    The ACMA must not make the variation unless a copy of the proposed variation was made available on the ACMA’s Internet site for a period of at least 5 business days.

(8)    Schedule 2, page 11 (after line 20), after item 6, insert:

6A  After section 26

Insert:

26A  Licence area plans—multi-channelled commercial television broadcasting services

        (1)    If:

             (a)    a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2007; and

             (b)    the licence authorises the licensee to provide a HDTV multi-channelled commercial television broadcasting service in the licence area;

                 the relevant licence area plan is not required to deal with the HDTV multi-channelled commercial television broadcasting service.

        (2)    Subsection (1) ceases to have effect at the end of the simulcast period, or the simulcast-equivalent period, for the licence area concerned.

        (3)    In this section:

HDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.

simulcast-equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

6B  After subsection 26B(1)

Insert:

     (1A)    Licence area plans are not required to deal with HDTV multi-channelled national television broadcasting services.

6C  Subsection 26B(2)

Omit “Subsection (1) ceases”, substitute “Subsections (1) and (1A) cease”.

6D  Subsection 26B(3)

Insert:

HDTV multi-channelled nationaltelevision broadcasting service has the same meaning as in Schedule 4.

(9)    Schedule 2, page 13 (after line 32), after item 9, insert:

9A  Subsection 38A(9)

Omit “services under”, substitute “at least one service under each of”.

(10)  Schedule 2, item 15, page 16 (after line 9), after subsection 40(12), insert:

Licence condition

      (13)    If the ACMA allocates a commercial television broadcasting licence under subsection (1), the licence is subject to the condition that the licensee may only provide the commercial television broadcasting service concerned in digital mode (within the meaning of Schedule 4).

(11)  Schedule 2, item 17, page 17 (line 15), after “period”, insert “, or a simulcast-equivalent period,”.

(12)  Schedule 2, item 17, page 17 (line 24), after “period”, insert “, or a simulcast-equivalent period,”.

(13)  Schedule 2, item 29, page 19 (after line 31), after paragraph 7(1)(mb), insert:

          (mc)    subject to subclauses (5), (6) and (7), if:

                   (i)    the licence was allocated under section 38A or 38B; and

                  (ii)    there is a simulcast-equivalent period for the licence area of the licence;

                      the licensee will provide a HDTV multi-channelled commercial television broadcasting service during the simulcast-equivalent period for the licence area;

(14)  Schedule 2, item 40, page 21 (line 3), omit “and (mb)”, substitute “, (mb) and (mc)”.

(15)  Schedule 2, item 40, page 21 (line 8), omit “Paragraph (1)(ma) does not apply”, substitute “Paragraphs (1)(ma) and (mc) do not apply”.

(16)  Schedule 2, item 40, page 21 (line 13), omit “Paragraph (1)(mb) does not apply”, substitute “Paragraphs (1)(mb) and (mc) do not apply”.

(17)  Schedule 2, item 40, page 21 (line 19), after “(mb)”, insert “, (mc)”.

(18)  Schedule 2, items 47 and 48, page 22 (lines 12 to 25), omit the items, substitute:

47  Clause 2 of Schedule 4 (definition of simulcast-equivalent period)

Repeal the definition, substitute:

simulcast-equivalent period:

             (a)    in relation to a commercial television broadcasting service—has the meaning given by clause 4C; or

             (b)    in relation to a national television broadcasting service—has the meaning given by clause 4D.

48  After clause 4B of Schedule 4

Insert:

4C  Simulcast-equivalent period for a licence area

If there is no simulcast period for a licence area of a commercial television broadcasting licence, the ACMA may, by legislative instrument, declare that a specified period is the simulcast-equivalent period for the licence area.

(19)  Schedule 2, page 24 (after line 16), after item 50, insert:

50A  After subclause 6(5B) of Schedule 4

Insert:

  (5BA)    An election made under subclause (5A) or (5AA) remains in force until:

             (a)    it is revoked, by written notice given to the ACMA, by:

                   (i)    if neither of the licences referred to in whichever of paragraph (5A)(a) or (5AA)(a) is applicable has been transferred since the making of the election—the holder of the licence allocated under section 38A or 38B; or

                  (ii)    if the licence allocated under section 38A or 38B has been transferred since the making of the election—the holder of that licence; or

                 (iii)    if a parent licence referred to in whichever of section 38A or 38B is applicable has been transferred since the making of the election—the holder of that parent licence; and

             (b)    the ACMA approves the revocation under clause 7B.

50B  Paragraph 6(7C)(b) of Schedule 4

Omit “in writing”, substitute “under clause 7B”.

50C  Subclauses 6(7D) and (7E) of Schedule 4

Repeal the subclauses.

50D  Subparagraph 6(7F)(b)(ii) of Schedule 4

Omit “the other”, substitute “each other”.

(20)  Schedule 2, page 24 (after line 31), after item 51, insert:

51A  After clause 7A of Schedule 4

Insert:

7B  Revocation of multi-channelling election

Scope

        (1)    This clause applies if a commercial television broadcasting licensee gives the ACMA a notice of revocation under subclause 6(5BA) or (7C).

Approval of revocation

        (2)    If the ACMA is satisfied that there is sufficient radiofrequency spectrum available, the ACMA must, by notice in writing given to the licensee:

             (a)    approve the revocation; and

             (b)    specify a day as the day on which the revocation takes effect; and

             (c)    vary the relevant digital channel plan under the commercial television conversion scheme to allot a channel to the licensee.

        (3)    For the purposes of subclause (2), any part of the spectrum covered by a determination under subsection 34(3) is taken not to be available.

        (4)    The ACMA may, before the day specified under paragraph (2)(b), by notice in writing, vary the day on which the revocation takes effect.

Refusal to approve revocation

        (5)    If the ACMA refuses to approve the revocation, the ACMA must give written notice of the refusal to the licensee.

(21)  Schedule 2, item 70, page 29 (line 9), after “period”, insert “, or the simulcast-equivalent period,”.

(22)  Schedule 2, item 74, page 30 (line 18), after “period”, insert “, or the simulcast-equivalent period,”.

(23)  Schedule 2, item 85, page 34 (line 8), after “period”, insert “, or a simulcast-equivalent period,”.

(24)  Schedule 2, item 85, page 34 (line 30), after “period”, insert “, or a simulcast-equivalent period,”.

(25)  Schedule 2, item 85, page 35 (line 24), after “period”, insert “, or a simulcast-equivalent period,”.

(26)  Schedule 2, item 85, page 36 (line 1), after “captioning service”, insert “for the program”.

(27)  Schedule 2, item 85, page 36 (line 6), after “period”, insert “, or a simulcast-equivalent period,”.

(28)  Schedule 2, item 85, page 36 (line 18), after “captioning service”, insert “for the program”.

(29)  Schedule 2, item 86, page 37 (line 13), at the end of the heading to clause 41C, add “etc.”.

(30)  Schedule 2, item 86, page 37 (line 17), after “period”, insert “, or a simulcast-equivalent period,”.

(31)  Schedule 2, item 87, page 38 (line 23), at the end of the heading to clause 41J, add “etc.”.

(32)  Schedule 2, item 87, page 38 (line 26), after “period”, insert “, or a simulcast-equivalent period,”.

(33)  Schedule 2, page 41 (after line 14), after item 90, insert:

90A  Subsection 102(2D)

After “transmitting”, insert “, in digital mode,”

90B  Subsection 102(2D)

After “service”, insert “or services”.

90C  Subsection 102(2D)

After “the licence”, insert “(the related licence)”.

90D  After subsection 102(2E)

Insert:

   (2EA)    If the related licence is transferred, the new transmitter licence is taken to be issued to the person to whom the related licence is transferred.

90E  After subsection 102(2F)

Insert:

      (2G)    If:

             (a)    under subclause 6(5BA) of Schedule 4 to the Broadcasting Services Act 1992, the licensee of a commercial television broadcasting licence (the related licence) gives the ACMA a notice of revocation of an election; and

             (b)    the ACMA approves the revocation under clause 7B of Schedule 4 to that Act;

                 the ACMA must issue to the licensee of the related licence a new transmitter licence that authorises the operation of one or more specified radiocommunications transmitters for transmitting commercial television broadcasting services in digital mode in accordance with the related licence.

     (2H)    The new transmitter licence comes into force on the day on which the revocation takes effect.

       (2J)    If the related licence is transferred, the new transmitter licence is taken to be issued to the person to whom the related licence is transferred.

90F  Paragraph 102(3)(b)

After “service”, insert “ or services”.

(34)  Schedule 2, page 41 (after line 16), after item 91, insert:

91A  Subsection 102A(2D)

After “licensee” (first occurring), insert “of a commercial television broadcasting licence (the related licence)”.

91B  Subsection 102A(2D)

After “service”, insert “or services”.

(35)  Schedule 2, Part 1, page 42 (after line 24), at the end of the Part, add:

92A  Subsection 103(1)

After “apparatus licence”, insert “(other than an apparatus licence issued under subsection 102(2D), 102(2G) or 102A(2D))”.

92B  Subsection 103(4)

Omit “ or 102A”.

92C  Subsection 103(4A)

Omit “section 102”, substitute “subsection 102(1)”.

92D  Paragraphs 103(4A)(a) and (b)

Omit “section”, substitute “subsection”.

92E  After subsection 103(4B)

Insert:

      (4C)    A transmitter licence issued under subsection 102(2D):

             (a)    subject to paragraph (b), continues in force while the related licence referred to in that subsection remains in force; and

             (b)    does not have effect while the related licence referred to in that subsection is suspended.

     (4D)    A transmitter licence issued under subsection 102(2G):

             (a)    subject to paragraph (b), continues in force while the related licence referred to in that subsection remains in force; and

             (b)    does not have effect while the related licence referred to in that subsection is suspended.

      (4E)    A transmitter licence issued under subsection 102A(1):

             (a)    subject to paragraph (b), continues in force while the related licence referred to in that subsection remains in force; and

             (b)    does not have effect while the related licence referred to in that subsection is suspended.

      (4F)    A transmitter licence issued under subsection 102A(2D):

             (a)    subject to paragraph (b), continues in force while the related licence referred to in that subsection remains in force; and

             (b)    does not have effect while the related licence referred to in that subsection is suspended.

(36)  Schedule 2, page 43 (after line 17), after item 93, insert:

93A Approval of revocation of multi-channelling election etc.

(1)    This item applies to a notice that was given under subclause 6(7D) of Schedule 4 to the Broadcasting Services Act 1992 before the commencement of this item.

(2)    The notice has effect, after the commencement of this item, as if it had been given under subclause 7B(2) of Schedule 4 to the Broadcasting Services Act 1992 as amended by this Schedule.

93B  Variation of the day on which a revocation of a multi-channelling election takes effect

(1)    This item applies to a notice given under subclause 6(7E) of Schedule 4 to the Broadcasting Services Act 1992 before the commencement of this item.

(2)    The notice has effect, after the commencement of this item, as if it had been given under subclause 7B(4) of Schedule 4 to the Broadcasting Services Act 1992 as amended by this Schedule.

93C  Variation of program standards

(1)    This item applies to a variation by the ACMA of a program standard if:

             (a)    the variation deals with transitional and/or consequential matters in connection with the amendments made by this Schedule; and

             (b)    either:

                   (i)    the variation was made before the commencement of this item in accordance with section 4 of the Acts Interpretation Act 1901; or

                  (ii)    the variation is made within 30 days after the commencement of this item.

(2)    Section 126 of the Broadcasting Services Act 1992 does not apply to the variation.

(3)    Section 17 of the Legislative Instruments Act 2003 does not apply to the variation.

(4)    The ACMA must not make the variation unless a copy of the proposed variation was made available on the ACMA’s Internet site for a period of at least 5 business days.

93D  Variation of commercial television conversion scheme

(1)    This item applies to a variation by the ACMA of the commercial television conversion scheme if:

             (a)    the variation deals with transitional and/or consequential matters in connection with the amendments made by this Schedule; and

             (b)    either:

                   (i)    the variation was made before the commencement of this item in accordance with section 4 of the Acts Interpretation Act 1901; or

                  (ii)    the variation is made within 30 days after the commencement of this item.

(2)    Clause 18 of Schedule 4 to the Broadcasting Services Act 1992 does not apply to the variation.

(3)    Section 17 of the Legislative Instruments Act 2003 does not apply to the variation.

(4)    The ACMA must not make the variation unless a copy of the proposed variation was made available on the ACMA’s Internet site for a period of at least 5 business days.

93E  Variation of national television conversion scheme

(1)    This item applies to a variation by the ACMA of the national television conversion scheme if:

             (a)    the variation deals with transitional and/or consequential matters in connection with the amendments made by this Schedule; and

             (b)    either:

                   (i)    the variation was made before the commencement of this item in accordance with section 4 of the Acts Interpretation Act 1901; or

                  (ii)    the variation is made within 30 days after the commencement of this item.

(2)    Clause 33 of Schedule 4 to the Broadcasting Services Act 1992 does not apply to the variation.

(3)    Section 17 of the Legislative Instruments Act 2003 does not apply to the variation.

(4)    The ACMA must not make the variation unless a copy of the proposed variation was made available on the ACMA’s Internet site for a period of at least 5 business days.

(37)  Schedule 3, page 45 (after line 13), after item 2, insert:

2A  After subsection 26A(1)

Insert:

     (1A)    If:

             (a)    a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2007; and

             (b)    the licence authorises the licensee to provide a SDTV multi-channelled commercial television broadcasting service in the licence area;

                 the relevant licence area plan is not required to deal with the SDTV multi-channelled commercial television broadcasting service.

2B  Subsection 26A(2)

Omit “Subsection (1) ceases”, substitute “Subsections (1) and (1A) cease”.

2C  Subsection 26A(3)

Insert:

SDTV multi-channelled commercialtelevision broadcasting service has the same meaning as in Schedule 4.

(38)  Schedule 3, page 45 (after line 13), after item 2, insert:

2D  Paragraph 38B(21A)(c)

Omit “one or both”, substitute “any or all”.

2E  Subsection 38B(21B)

Omit “a commercial”, substitute “at least one commercial”.

(39)  Schedule 3, page 49 (after line 6), after item 6, insert:

6A  Paragraph 7(1)(p) of Schedule 2

After “section”, insert “101B, 101C,”.

(40)  Schedule 3, item 14, page 51 (line 14), at the end of the heading to clause 41A, add “etc.”.

(41)  Schedule 3, item 14, page 51 (line 18), after “period”, insert “, or a simulcast-equivalent period,”.

(42)  Schedule 3, item 14, page 52 (line 20), at the end of the heading to clause 41B, add “etc.”.

(43)  Schedule 3, item 14, page 52 (line 25), after “period”, insert “, or a simulcast-equivalent period,”.

(44)  Schedule 3, item 15, page 54 (line 3), at the end of the heading to clause 41D, add “etc.”.

(45)  Schedule 3, item 15, page 54 (line 8), after “period”, insert “, or a simulcast-equivalent period,”.

(46)  Schedule 3, item 15, page 55 (line 13), at the end of the heading to clause 41E, add “etc.”.

(47)  Schedule 3, item 15, page 55 (line 16), after “period”, insert “, or the simulcast-equivalent period,”.

(48)  Schedule 3, item 15, page 56 (line 24), at the end of the heading to clause 41F, add “etc.”.

(49)  Schedule 3, item 15, page 56 (line 27), after “period”, insert “, or the simulcast-equivalent period,”.

(50)  Schedule 3, item 15, page 57 (line 30), at the end of the heading to subclause 41G(1), add “etc.”.

(51)  Schedule 3, item 15, page 57 (line 35), after “period”, insert “, or the simulcast-equivalent period,”.

(52)  Schedule 3, item 15, page 58 (line 3), at the end of the heading to subclause 41G(2), add “etc.”.

(53)  Schedule 3, item 15, page 58 (line 7), after “period”, insert “, or the simulcast-equivalent period,”.

(54)  Schedule 3, item 16, page 58 (line 14), at the end of the heading to clause 41K, add “etc.”.

(55)  Schedule 3, item 16, page 58 (line 17), after “period”, insert “, or the simulcast-equivalent period,”.

(56)  Schedule 3, item 16, page 59 (line 24), at the end of the heading to cl