Just shy of a year after the final report of the Convergence Review was published, Senator Conroy has unveiled the legislation backing the proposed reforms to media regulation that have attracted the attention of many of the nation’s most prominent media barons.
Contained in six different Bills, the legislation comprises the Government’s response to the Convergence Review and the Independent Inquiry into the Media and Media Regulation (Finkelstein Report). However, many of the recommendations made in the Convergence Review and Finkelstein Report have not been adopted. In particular, although consideration is being given to the 75% reach rule, the original “trade off” for the new public interest test was for the abolition of other rules restricting the concentration of media ownership in licence areas.
There are five main reforms contained in the legislation, as well as three other items which have been deferred to a parliamentary committee for consideration. And while reports from Canberra indicate that it is increasingly unlikely that these reforms will be passed, it is important that the details of the major announcements be understood.
The Public Interest Media Advocate
The Public Interest Media Advocate Bill 2013 creates a new independent statutory office to oversee significant mergers in the media industry, and authorise and monitor the industry’s self-regulatory bodies. The Public Interest Media Advocate (PIMA) will be appointed by the Minister, but will not be subject to any direction from government.
The Public Interest Test
The Broadcasting Legislation Amendment (News Media Diversity) Bill 2013 introduces a new Part 5A to the Broadcasting Services Act 1992 which gives the PIMA the ability to block mergers between influential sources of news and current affairs. This effectively creates an additional layer of regulation to the ACCC’s power to block mergers under section 50 of the Competition and Consumer Act 2010 based on a “substantial lessening of competition” test.
The PIMA will determine whether a transaction between registered news media voices of national significance can proceed, by applying a new public interest test.
Pursuant to s78AA of this Bill, the PIMA must not approve a change of control unless:
- it will not result in a substantial lessening of diversity of control of registered news media voices; or
- it is likely to result in a benefit to the public, and that benefit outweighs the detriment to the public constituted by any lessening of diversity of control of registered news media voices.1
Significantly, this part of the Bill considers national media voices to include, amongst other traditional media sources, subscription television services that provide news or current affairs programs, subscription television platforms, and online services that have news or current affairs content.
Before making a finding, the PIMA must publish a draft and invite submissions from the public.
The PIMA also has the special power to accept court-enforceable undertakings from national media voices in relation to the news and current affairs content that they provide.
If there is an unapproved change of control that breaches this part of the Act, the PIMA has significant remedial powers which include compulsory divestment.
Press standards model
Under the News Media (Self-regulation) Bill 2013, the PIMA will authorise self-regulatory industry bodies based on their ability to deal with complaints and other matters of ‘journalistic significance’ such as privacy, fairness and accuracy.
Media organisations will be unable to rely on exemptions from the Privacy Act 1988 (regarding exemption from disclosing sources) unless they are a member of a self-regulatory body which has been approved by the PIMA.
Modernising the ABC and SBS charters
Schedule 1 of the Broadcasting Legislation Amendment (Convergence Review and Other Measures) Bill 2013 incorporates recommendations from the Convergence Review that the ABC and SBS charters be modernised, by including references to the production of digital broadcasting, a requirement that at least one non-executive director of the SBS be an indigenous Australian, and provision for the ABC to have permanent responsibility for the international broadcasting of the Australia Network.
Three free-to-air commercial networks
The Broadcasting Legislation Amendment (Convergence Review and Other Measures) Bill 2013 implements the Convergence Review’s recommendation that a commercial licence not be granted to a fourth free-to-air network.
A 50% reduction in licence fees and an increase in Australian content
The Television Licence Fees Amendment Bill 2013 introduces a new fee system which effectively reduces licensing fees by 50%, capping them at 4.5% of the commercial broadcaster’s gross earnings.
In return, the Broadcasting Legislation Amendment (Convergence Review and Other Measures) Bill 2013 imposes conditions on commercial television broadcasting licenses which requires a significant increase on the amount of Australian content required, increasing the quota to 1460 hours of Australian programming from 2015.
Issues referred to committee
The parliamentary Committee formed by Senator Conroy, which is due to file its interim report by 20 March 2013, is also charged with considering:
- the abolition of the 75% reach rule: a rule which restricts an entity from owning free-to-air television licensees who can broadcast to an audience which is more than 75% of the Australian population;
- enforced broadcasting of regulation breaches identified by ACMA: a requirement that broadcasters report adverse ACMA findings on-air; and
- whether free-to-air channels can outsource their production of news and current affairs.
In addition, the Australian Law Reform Commission will be asked to consider the possibility of a privacy tort.