Footnotes

Chapter 1 - Introduction

[1]        Journals of the Senate, 2013–16, No. 145 (3 March 2016), p. 3901.

[2]        Department of the Senate, 'Procedural Information Bulletin No. 303', www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Procedural_Information_Bulletins/2016/bull303 (accessed 21 April 2016).

[3]        This mechanism is often used to enable a Senate standing committee to consider the provisions of a bill that is yet to be received by the Senate. H Evans and R Laing (eds.), Odgers' Australian Senate Practice, 13th ed., Canberra: Department of the Senate, p. 305.

[4]        Senate Standing Committee for the Scrutiny of Bills, Alert Digest, No. 4 of 2016, 16 March 2016, p. 1.

Chapter 2 - Overview of the current framework and the changes proposed in the bill

[1]        The Regulation Impact Statement explains that the framework is based 'on the concept of "control", not ownership per se'. That is: 'If a person has company interests exceeding 15 per cent, they are regarded as being in a position to exercise control of the company. However, holding company interests is not the only way to be in a position to exercise control'. For further information, see Explanatory Memorandum (EM), p. 6. 

[2]        EM, p. 6. As newspapers with a national circulation (such as The Australian and the Australian Financial Review) are not associated with a relevant licence area, the ownership of these newspapers is not regulated by the media control rules.

[3]        EM, pp. 6–7.

[4]        EM, p. 1.

[5]        The 60 per cent threshold was introduced by the Broadcasting (Ownership and Control) Act 1987. The 75 per cent threshold took effect when the BSA commenced in 1993.

[6]        Department of Communications, 'Media control and ownership', Policy background paper, No. 3, June 2014, www.communications.gov.au/file/1251/download?token=kGQjvOnT (accessed 21 March 2016), p. 19; ACMA, 'Statutory control rules', www.acma.gov.au/‌Industry/Broadcast/Media-ownership-and-control/Ownership-and-control-rules/statutory-control-rules-media-ownership-control-acma (accessed 22 March 2016).

[7]        Department of Communications, 'Media control and ownership', p. 19.

[8]        See Broadcasting Services Act 1992, s. 52; Prime Media Group, Answers to questions on notice, 31 March 2016 (received 15 April 2016), p. 2; Department of Communications and the Arts, Answers to questions on notice, 31 March 2016 (received 18 April 2016), p. 2.

[9]        Department of Communications, 'Media control and ownership', p. 19. See also EM, p. 1.

[10]      Department of Communications, 'Media control and ownership', p. 18.

[11]      See Australian Competition and Consumer Commission (ACCC), Answers to questions on notice, 31 March 2016 (received 21 April 2016), pp. 1–13.

[12]      Department of Communications, 'Media control and ownership', p. 11.

[13]      EM, p. 1.

[14]      EM, p. 1.

[15]      Southern Cross Austereo, p. 4. The Joint Committee recommended that the rule be abolished 'provided there is legislation or legally enforceable undertakings to safeguard local content in regional Australia'. That committee's report added: 'Prior to the introduction of the legislation, a clear definition of local content needs to be established which ensures regional viewers have access to appropriate levels of high quality, locally devised, and locally presented programming'. Joint Select Committee on Broadcasting Legislation, Three broadcasting reform proposals, June 2013, p. 17.

[16]      Southern Cross Austereo, Submission 4, p. 5.

[17]      Southern Cross Austereo, Submission 4, p. 4.

[18]      News Corp Australia, Submission 8, p. 3. This data is based on desktop consumption—that is, mobile and tablet use is not included.

[19]      Foxtel proposed to acquire up to 15 per cent of Ten while Ten proposed to acquire a 24.9 per cent stake in the Multi Channel Network (a supplier of advertising opportunities on subscription television channels). Ten also had an option to acquire 10 per cent of Presto TV, a joint venture between Foxtel and Seven West Media. ACCC, 'Mergers register', http://registers.accc.gov.au/content/index.phtml/itemId/750991 (accessed 21 March 2016).

[20]      Mr Rod Sims, Chairman, ACCC, Committee Hansard, 31 March 2016, p. 43.

[21]      Mr Rod Sims, ACCC, Committee Hansard, 31 March 2016, p. 43.

[22]      The Hon Paul Fletcher MP, Proof House of Representatives Hansard, 2 March 2016, p. 7.

[23]      EM, pp. 7–8.

[24]      Regional Queensland, Northern NSW, Southern NSW and Regional Victoria.

[25]      The licence condition is outlined in the Broadcasting Services (Additional Television Licence Condition) Notice 2014.

[26]      EM, p. 8.

[27]      EM, p. 36.

[28]      A timing period is defined in proposed new subsection 61CY(2) as: the period of 6 weeks starting on the first Sunday in February in a year; (b) each subsequent period of 6 weeks until the end of the 42nd week after the first Sunday in February; (c) the period: (i) starting at the end of the 42nd week after the first Sunday in February; and (ii) ending immediately before the first Sunday in February in the following year.

[29]      These include the following licence areas: Broken Hill, Darwin, Geraldton, Griffith and Murrumbidgee Irrigation Area (MIA), Kalgoorlie, Mildura/Sunraysia, Mount Gambier/South East, Mt Isa, Remote and Regional WA, Riverland, South West and Great Southern, and Spencer Gulf.

[30]      Schedule 3, part 1, proposed new section 61CX. Note: at page 2 of the EM, there is an incorrect reference to '60' points rather than 360 points.

[31]      EM, p. 36.

[32]      EM, p. 2.

[33]      EM, p. 37.

[34]      EM, p. 37. See Schedule 3, part 1, proposed new subsection 61CY(3).

[35]      EM, p. 41.

[36]      Schedule 3, part 1, proposed new section 61CZA; EM, p. 41.

[37]      Schedule 3, part 1, proposed new section 61CZC.

[38]      EM, p. 25.

Chapter 3 - Key issues

[1]        Mr Ian Audsley, Chief Executive Officer, Prime Media Group, Committee Hansard, 31 March 2016, p. 33.

[2]        Mr Ian Audsley, Prime Media Group, Committee Hansard, 31 March 2016, p. 33.

[3]        Fairfax Media, Submission 11, p. 1.

[4]        Fairfax Media, Submission 11, p. 1.

[5]        Ten Network, Submission 15, p. 1.

[6]        News Corp Australia, Submission 8, p. 1.

[7]        Nine Entertainment Co, Submission 16, p. 2.

[8]        Australian Subscription Television and Radio Association (ASTRA), Submission 5, p. 2. Like ASTRA, Foxtel argued for 'holistic' reform. However, Foxtel's submission differed from ASTRA's in that it expressly stated that Foxtel does not support passage of the bill 'at this time'. See Foxtel, Submission 3, p. 1.

[9]        Institute of Public Affairs, Submission 7, p. 1.

[10]      Ten Network, Submission 15, p. 1.

[11]      Ten Network, Submission 15, p. 3.

[12]      Seven West Media, Submission 14, pp. 12–13; Ten Network, Submission 15, p. 1; and
Nine Entertainment Co, Submission 16, p. 4.

[13]      Ten Network, Submission 15, p. 1.

[14]      Ten Network, Submission 15, p. 1.

[15]      Mr Tim Worner, Chief Executive Officer, Seven West Media, Committee Hansard, 31 March 2016, p. 14.

[16]      Australian Government, Budget 2016–17: Budget Measures—Budget Paper No. 2, May 2016, p. 8.

[17]      Senator the Hon Mitch Fifield, 'Supporting public broadcasting and creating a more competitive environment for commercial broadcasters', Media Release, 3 May 2016.

[18]      ASTRA, Submission 5, p. 2.

[19]      Mr Bruce Meagher, Group Director, Corporate Affairs, Foxtel, Committee Hansard, 31 March 2016, p. 24.

[20]      Mr Andrew Maiden, Chief Executive Officer, ASTRA, Committee Hansard, 31 March 2016, p. 25.

[21]      Mr Bruce Meagher, Foxtel, Committee Hansard, 31 March 2016, p. 24.

[22]      Mr Chris Berg, Senior Fellow, Institute of Public Affairs, Committee Hansard, 29 April 2016, p. 60.

[23]      Associate Professor Margaret Simons, Board Member, Public Interest Journalism Foundation, Committee Hansard, 29 April 2016, p. 47.

[24]      Seven West Media, Submission 14, p. 3.

[25]      Mr Grant Blackley, Chief Executive Officer, Southern Cross Austereo, Committee Hansard, 31 March 2016, p. 40.

[26]      Mr Greg Hywood, Chief Executive and Managing Director, Fairfax Media, Committee Hansard, 29 April 2016, p. 39.

[27]      Mr Richard Windeyer, First Assistant Secretary, Content Branch, Department of Communications and the Arts, Committee Hansard, 31 March 2016, pp. 70–71.

[28]      Nine Entertainment Co, Submission 16, p. 2.

[29]      NSW Farmers' Association, Submission 9, p. 5.

[30]      Southern Cross Austereo, Submission 4, p. 4.

[31]      Mr Paul Murphy, Chief Executive Officer, Media Entertainment and Arts Alliance (MEAA), Committee Hansard, 31 March 2016, p. 61.

[32]      However, Professor Ricketson questioned whether the government had considered other options for reform. For example, he suggested that concerns about the entry of international media companies could potentially be addressed by regulating those companies. See Committee Hansard, 31 March 2016, p. 1.

[33]      Professor Matthew Ricketson, Committee Hansard, 31 March 2016, p. 1. See also Committee Hansard, 31 March 2016, p. 5.

[34]      Professor Jock Given, Committee Hansard, 29 April 2016, p. 1.

[35]      Prime Media Group, Submission 8, p. 2.

[36]      Prime Media Group, Submission 8, p. 3.

[37]      Prime Media Group, Submission 8, p. 3.

[38]      Seven West Media, Submission 14, p. 5.

[39]      NSW Farmers' Association, Submission 9, p. 4.

[40]      WIN Network, Submission 10, p. 6.

[41]      WIN Network, Submission 10, p. 6.

[42]      WIN Network, Submission 10, p. 7.

[43]      Ms Annabelle Herd, Director, Corporate and Regulatory Affairs, Ten Network, Committee Hansard, 29 April 2016, p. 23.

[44]      Fairfax Media, Submission 11, p. 3.

[45]      Fairfax Media, Submission 11, pp. 1–2.

[46]      Fairfax Media, Submission 11, p. 3.

[47]      Fairfax Media, Submission 11, p. 1.

[48]      Ten Network, Submission 15, p. 1.

[49]      Ms Annabelle Herd, Director, Corporate and Regulatory Affairs, Ten Network, Committee Hansard, 29 April 2016, p. 22.

[50]      Fairfax Media, Submission 11, p. 4.

[51]      Associate Professor Margaret Simons subsequently added that the concern about diversity is partly about the number of journalists on location: 'For example, am I likely to find out what is happening in the Supreme Court in Melbourne today? Can I, as a citizen, be confident that by consuming media I will know the things I need to know to be an effective and informed citizen'. See Associate Professor Margaret Simons, Board Member, Public Interest Journalism Foundation, Committee Hansard, 29 April 2016, pp. 43, 49.

[52]      Mr Paul Murphy, Chief Executive Officer, MEAA, Committee Hansard, 31 March 2016, p. 58.

[53]      Public Interest Journalism Foundation, Submission 13, pp. 2–3. Professor Matthew Ricketson referred to the Foundation's recommendations when he informed the committee that he would support the repeal of the 2 out of 3 rule if 'specific mechanisms are put in place to support independent, quality journalism in Australia'. See Committee Hansard, 31 March 2016, p. 3.

[54]      Dr Derek Wilding, Submission 17, p. 12.

[55]      Dr Derek Wilding, Committee Hansard, 31 March 2016, p. 8.

[56]      Ms Annabelle Herd, Director, Corporate and Regulatory Affairs, Ten Network, Committee Hansard, 29 April 2016, p. 24.

[57]      Public Interest Journalism Foundation, Submission 13, p. 2.

[58]      Professor Julian Thomas, Board Member, Public Interest Journalism Foundation, Committee Hansard, 29 April 2016, p. 45.

[59]      Dr Derek Wilding, Committee Hansard, 31 March 2016, pp. 10–11.

[60]      However, Mr Sims emphasised that news and current affairs would be of greater interest to the ACCC than entertainment, given the multitude of sources for movies and other forms of entertainment that exist. Mr Rod Sims, Chairman, ACCC, Committee Hansard, 31 March 2016, p. 43.

[61]      Mr Rod Sims, ACCC, Committee Hansard, 31 March 2016, p. 43.

[62]      Mr Rod Sims, ACCC, Committee Hansard, 31 March 2016, p. 50.

[63]      Mr Rod Sims, ACCC, Committee Hansard, 31 March 2016, p. 47.

[64]      Mr Rod Sims, ACCC, Committee Hansard, 31 March 2016, p. 49.

[65]      Mr Richard Windeyer, First Assistant Secretary, Content Branch, Department of Communications and the Arts, Committee Hansard, 31 March 2016, p. 71.

[66]      Mr Derek Schoen, President, NSW Farmers' Association, Committee Hansard, 31 March 2016, p. 51.

[67]      Institute of Public Affairs, Submission 7, p. 2.

[68]      Nine Entertainment Co, Submission 16, p. 7.

[69]      MEAA, Submission 2, p. 1.

[70]      WIN Network, Submission 10, p. 7.

[71]      Seven West Media, Submission 14, p. 6.

[72]      Mr Ian Audsley, Chief Executive Officer, Prime Media Group, Committee Hansard, 31 March 2016, Committee Hansard, 31 March 2016, p. 38.

[73]      Mr Andrew Lancaster, Chief Executive Officer, WIN Network, Committee Hansard, 31 March 2016, p. 38.

[74]      Mr Grant Blackley, Chief Executive Officer, Southern Cross Austereo, Committee Hansard, 31 March 2016, p. 38.

[75]      NSW Farmers' Association, Submission 9, p. 4.

[76]      The ACMA already makes determinations about these matters; for example, an officer from the Department of Communications and the Arts noted that, within the large licence area for regional Queensland, the ACMA had 'developed a determination that sets out different local areas within that licence area'. Mr Rohan Buettel, Assistant Secretary, Content Branch, Department of Communications and the Arts, Committee Hansard, 31 March 2016, p. 69.

[77]      Ms Jennifer McNeill, General Manager, Content, Consumer and Citizen Division, ACMA, Committee Hansard, 31 March 2016, p. 69. An officer from the Department of the Communications and the Arts noted that the existing Broadcasting Services (Additional Television Licence Condition) Notice 2014, which prescribes the current points scheme, provides a 'good guide' to the approach that will be taken in the new instrument.
Mr Rohan Buettel, Assistant Secretary, Content Branch, Department of Communications and the Arts, Committee Hansard, 31 March 2016, pp. 68–69.

[78]      Explanatory Memorandum (EM), p. 6.

[79]      Prime Media Group, Submission 8, p. 7. See also Mr Ian Audsley, Prime Media Group, Committee Hansard, 31 March 2016, p. 33.

[80]      Prime Media Group, Answers to questions on notice, 31 March 2016 (received 15 April 2016), p. 3.

[81]      Prime Media Group, Submission 8, pp. 7–8. Paragraph 2(d) provides that a person is in a position to exercise control of a licence or a company if the person, either alone or together with an associate of the person, is in a position to: (i) veto any action taken by the board of directors of the licensee or the company; or (ii) appoint or secure the appointment of, or veto the appointment of, at least half of the board of directors of the licensee or the company; or (iii) exercise, in any other manner, whether directly or indirectly, direction or restraint over any substantial issue affecting the management or affairs of the licensee or the company. Paragraph 2(e) provides that a person is in a position to exercise control of a licence or a company if the licensee or the company or more than 50 per cent of its directors: (i) act, or are accustomed to act; or (ii) under a contract or an arrangement or understanding (whether formal or informal) are intended or expected to act; in accordance with the directions, instructions or wishes of, or in concert with, the person or of the person and an associate of the person acting together or, if the person is a company, of the directors of the person. Broadcasting Services Act 1992, schedule 1, paragraphs 2(d)–(e).

[82]      Schedule 3, Part 1, item 1 [proposed new section 61CV].

[83]      Dr Simon Pelling, First Assistant Secretary, Content Division, Department of Communications and the Arts, Committee Hansard, 29 April 2016, p. 65.

[84]      Dr Simon Pelling, First Assistant Secretary, Department of Communications and the Arts, Committee Hansard, 29 April 2016, p. 65.

[85]      Department of Communications and the Arts, Answers to questions on notice, 29 April 2016 (received 4 May 2016), p. 1.

[86]      Ms Jennifer McNeill, ACMA, Committee Hansard, 31 March 2016, pp. 66–67.

[87]      Mr Paul Murphy, Chief Executive Officer; Mr Matthew Chesher, Director, Legal and Policy, MEAA, Committee Hansard, 31 March 2016, p. 63.

[88]      Ms Jaimie Lovell, Policy Director, NSW Farmers' Association, Committee Hansard, 31 March 2016, p. 51.

[89]      NSW Farmers' Association, Submission 9, p. 5.

[90]      Mr Richard Windeyer, First Assistant Secretary, Content Branch, Department of Communications and the Arts, Committee Hansard, 31 March 2016, pp. 71–72.

[91]      For example, the Broadcasting and Other Legislation Amendment (Deregulation Act 2015 introduced amendments to allow for a complaints-based system for captioning services instead of annual reporting requirements.

[92]      EM, p. 41.