Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
BROADCASTING LEGISLATION AMENDMENT (FOREIGN MEDIA
OWNERSHIP AND COMMUNITY RADIO) BILL 2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for Communications,
Senator the Honourable Mitch Fifield)
OUTLINE
The Broadcasting Legislation Amendment (Foreign Media Ownership and Community
Radio) Bill 2017 (Bill) will amend the Broadcasting Services Act 1992 (BSA) and the
Australian Communications and Media Authority Act 2005 to improve transparency in the
levels and sources of foreign investment in Australian media companies, and strengthen
localism in community radio broadcasting.
The proposed amendments to the Bill would address an anomaly arising from the
application of the regional local programming requirements under Division 5D of Part 5 of
the BSA to a non-aggregated licensee in regional Western Australia. Under current
arrangements, the affected licensee would be subject to disproportionately high local
programming requirements relative to its competitors (which broadcast to an equivalent
geographic area) following a trigger event for the relevant licence area (Amendment Sheet
EK129).
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FINANCIAL IMPACT STATEMENT
These Government amendments have no financial impact.
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AMENDMENT SHEET EK129
The proposed amendments will insert a new Schedule 3 into the Bill to amend Division
5D (Local programming requirements for regional commercial television broadcasting
licensees) of Part 5 of the BSA. The new Schedule to the Bill would address an anomaly
arising from the application of the regional local programming requirements to a non-
aggregated licensee in regional Western Australia. The amendments would also amend the
title of the Bill.
Background
Overview
For historical reasons, the licensing arrangements for the two commercial television
broadcasting licensees in regional and remote Western Australia, Golden West Network
Pty Ltd (ACN 008 681 196) (GWN7) and WIN Television WA Pty Ltd (ACN 001 969
491) (WIN), differ significantly from ordinary practice. Ordinarily, the licensing
arrangements for competing commercial television broadcasting licensees in the same
market are equivalent.
However, despite GWN7 and WIN broadcasting to a geographic area of an equivalent size
in regional and remote Western Australia, GWN7 presently controls four licences in
regional and remote Western Australia while WIN only holds one. GWN7's four licences
include one remote licence (which is not subject to the local content requirements) and
three regional licences that commenced in the 1960s and 1970s.
By comparison, WIN only holds one licence in regional Western Australia which covers
an equivalent geographic area to the four GWN7 licences and which commenced in 1999.
More specifically, in regional Western Australia, GWN7 controls commercial television
broadcasting licences which relate to the following licence areas: Geraldton TV1; South
West and Great Southern TV1; and Kalgoorlie TV1. WIN holds one licence in regional
Western Australia which relates to the Remote and Regional WA TV1 licence area.
The Broadcasting Services Local Programming Determination 2018 (the Determination)
was made by the Australian Communications and Media Authority (ACMA). The
Determination prescribes the 'local area' that regional commercial television broadcasting
licensees, such as GWN7 and WIN, must serve with material of local significance (local
content) following a relevant change in control (trigger event).
The Determination provides that, for certain licensees (including GWN7), the local area is
the area identical to the licence area for the licence, essentially prescribing one local area
per relevant licence. Additionally, by operation of the Determination, the local area for
WIN's regional WA licence covers the same geographic area as the combined area of the
licence areas for GWN7's three regional licences and one remote licence.
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The effect of this is that, although GWN7 and WIN broadcast to a geographic area of an
equivalent size, if a relevant trigger event were to occur, GWN7 would have three local
areas to serve in Western Australia while WIN would have just one. As a result, GWN7
would be subject to three times the local content obligations that WIN would face if its
sole commercial television broadcasting licence in regional Western Australia was
affected by a trigger event.
The pertinent licences held by GWN7 and WIN are 'regional non-aggregated commercial
television broadcasting licences' for the purposes of Division 5D. This means that six
months after the occurrence of a trigger event for any one of GWN7's or WIN's licences
in regional Western Australia, local programming requirements will be introduced for the
relevant licensee.
Division 5D - Local programming requirements for regional commercial television
broadcasting licensees
The Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 inserted
Division 5D into Part 5 of the BSA. Division 5D increased, or introduced for the first time,
local content obligations which apply where, as a result of a relevant change in control, a
regional commercial television broadcasting licence becomes part of a group of
commercial television licences with a combined licence area population which exceeds
75 per cent of the Australian population (i.e. a 'trigger event' as defined in section 61CV
of the BSA).
Section 61CX sets out the local programming requirements that apply to regional
non-aggregated commercial television broadcasting licensees affected by a trigger event.
The minimum amount of local content that must be broadcast is defined using a points
system, where licensees earn a specified number of points for each minute of local content
that is broadcast.
Section 61CX provides that, when a trigger event occurs (that is the first or only trigger
event for the licence), a relevant licensee is required to broadcast local content to each
local area to accumulate at least:
a. 600 points in each timing period that begins 6 months after the trigger event; and
b. 100 points in each week that is included in a relevant timing period.
Section 61CY sets out the points system that applies in relation to the local programming
obligations under section 61CX. A higher number of points per minute are scored for
particular types of content, such as local news.
The Local Programming Determination
As noted above, the Determination was made by the ACMA under subsection 61CZ(1) of
the BSA and stipulates what the 'local area' is for each regional commercial television
broadcasting licence that will be subject to local content obligations under the BSA.
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Addressing the anomaly
As previously identified, although GWN7 and WIN broadcast to a geographic area of an
equivalent size, currently, if a relevant trigger event were to occur, the licensee that
controls the three GWN7 licences would be subject to three times the local content
obligations that the licensee that controls the WIN licence would face if its sole
commercial television broadcasting licence in regional Western Australia was affected by
a trigger event.
The new Schedule to the Bill intends to address this anomaly by inserting provisions in
Division 5D of Part 5 of the BSA which alter the manner in which points may be
accumulated by a commercial television broadcasting licensee for the Geraldton TV1,
Kalgoorlie TV1 and South West and Great Southern TV1 licence areas, where those
licences are under common control.
In particular, under certain circumstances, the proposed new provisions would apply to
mean that when calculating whether it had accumulated the required number of points,
where a person controls each of the three relevant commercial television broadcasting
licences in regional Western Australia, a licensee would be able to count local content that
relates to any of the local areas of any of the three relevant licences.
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NOTES ON AMENDMENTS
Amendment (1)
This Amendment would alter the title of the proposed Act so that it includes "and Other
Measures" to reflect the inclusion of the proposed new Schedule to the Bill which relates
to a measure other than foreign ownership of media assets and community radio
broadcasting licences.
Amendment (2)
This Amendment would insert a new Schedule 3 into the Bill, titled "Local programming
requirements for regional commercial television broadcasting licensees".
All of the items that follow, comprising Schedule 3 to the Bill, are proposed amendments
to the Broadcasting Services Act 1992 (BSA).
Item 1 - Section 61CU
Item 1 would insert three new definitions into section 61CU, which sets out definitions
that are relevant to Division 5D of Part 5 of the BSA.
The term, combined designated Western Australian commercial television broadcasting
licence area is defined to mean the area that consists of the licence areas of the designated
Western Australian commercial television broadcasting licences. This term is used in
proposed new subsection 61CYA(2) (item 8 below), which would modify the way in
which content may accumulate points for the purposes of satisfying the local programming
requirements under section 61CX. The term is also used in proposed subsections 61CYA
(3) and (5) (item 8).
The term, combined designated Western Australian commercial television broadcasting
local area is defined to mean the area that consists of the local areas of the designated
Western Australian commercial television broadcasting licences. The term is used in
proposed subsections 61CYA(2), (3), (4) and (6) (item 8).
The term, designated Western Australian commercial television broadcasting licence is
defined to mean a commercial television broadcasting licence for any of the following
licence areas:
Geraldton TV1;
Kalgoorlie TV1;
South West and Great Southern TV1.
The term is used in proposed subsection 61CYA(1), with the effect that the modifications
made by that section will only apply where there is a trigger event for one of these
licences. The three commercial television broadcasting licences for these licence areas are
currently under the common control of GWN7.
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Item 2 - Section 61CU (at the end of the definition of local area)
Item 2 would add a note at the end of the existing definition of 'local area', referring the
reader to proposed section 61CYA which deals with modifications that are to apply to
designated Western Australian commercial television broadcasting licences (refer Item 8
below).
Item 3 - Section 61CU (at the end of the definition of material of local significance)
Item 3 would add a note at the end of the existing definition of 'material of local
significance', referring the reader to proposed section 61CYA.
Item 4 - At the end of subsection 61CX(1)
Subsection 61CX sets out the local programming requirements for regional commercial
television broadcasting licences in non-aggregated markets that are affected by a trigger
event. It requires a licensee to broadcast, to each local area, material of local significance
in order to accumulate certain minimum points in each timing period and each week
within the timing period. Item 4 would add a note at the end of existing subsection
61CX(1), referring the reader to proposed section 61CYA which would modify the
requirements in certain circumstances.
Item 5 - At the end of subsection 61CY(3)
Section 61CY sets out the points system that applies for the local programming obligations
under section 61CX (as noted above). Subsection 61CY(3) relates to the number of points
that are to be assigned for different types of material of local significance. Item 5 would
add a note at the end of subsection 61CY(3), referring the reader to proposed section
61CYA, which would affect the application of the points system in certain circumstances
(see proposed subsection 61CYA(3)).
Item 6 - At the end of subsection 61CY(5)
Item 6 would add a note at the end of existing subsection 61CY(5). This particular
subsection provides limits on the number of points that are to be accumulated for types of
material of local significance.
The note would refer the reader to section 61CYA, which would modify the application of
subsection 61CY(5) in certain circumstances (see proposed subsection 61CYA(5)).
Item 7 - At the end of subsection 61CY(7)
Item 7 would add a note at the end of existing subsection 61CY(7). This particular
subsection relates to limits on the points that may be accumulated in a local area for
broadcasts of community service announcements.
The note would refer the reader to section 61CYA, which would modify the application of
subsection 61CY(7) in certain circumstances (see proposed subsection 61CYA(6)).
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Item 8 - After section 61CY
Item 8 would insert new section 61CYA which would modify aspects of the local
programming requirements as they apply to designated Western Australian commercial
television broadcasting licences subject to a trigger event. It would also insert new section
61CYB, which would set out when designated Western Australian commercial television
broadcasting licences are considered to be under common control for the purposes of
paragraphs 61CYA(1) (c) and (d).
These modifications would alter the manner in which points may be accumulated by a
commercial television broadcasting licensee for the Geraldton TV1, Kalgoorlie TV1, and
South West and Great Southern TV1 licence areas, provided the licences for those licence
areas are under common control immediately before (and continue to be under common
control after) the relevant trigger event occurs.
Scope
Subsection 61CYA(1) would set out the scope of the section, stipulating when the
modifications are to apply.
Subsection 61CYA(1) provides that section 61CYA is to apply where:
a trigger event for a designated Western Australian commercial television
broadcasting licence occurs on a particular day; and
that event is the first or only trigger event for the licence; and
immediately before that event, the designated Western Australian commercial
television broadcasting licences were under common control; and
a period satisfies the following conditions:
o the period began at the time of that event;
o at all times during the period the designated Western Australian
commercial television broadcasting licences are under common control.
It is only when these conditions are satisfied that a person would enjoy the operation of
section 61CYA.
The modifications set out under section 61CYA are only to apply in certain circumstances
and will cease to apply where these circumstances no longer exist.
Currently, each of the three designated Western Australian commercial television
broadcasting licences are under the common control of GWN7. The modifications set out
under proposed section 61CYA are intended to reduce the burden on a licensee that
controls each of the three designated Western Australian commercial television
broadcasting licences so that, were a relevant trigger event to occur, such a licensee would
not, in practice, need to source a disproportionately larger amount of material of local
significance than the other regional Western Australian commercial television
broadcasting licensee (whose licence relates to the Remote and Regional WA TV1 licence
area) who broadcasts to a geographic area of an equivalent size.
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Provided that a person continues to control all three licences at once, proposed section
61CYA will continue to apply regardless of whether that person is continuously the same
person or not. This allows for the bloc of three licences to be on-sold or to come under
control of another person. However, if control of the bloc of three licences is broken apart
at any point after the trigger event, the material of local significance requirements will
revert to their ordinary application under Division 5D of Part 5 of the BSA, and proposed
section 61CYA will not apply. This means that each licensee would be required to satisfy
the material of local significance obligations without the ability to rely on content that is of
significance to the other two licence areas or their associated local areas.
If, following a split in the bloc of the three licences, the three licences then subsequently
come under common control again, proposed section 61CYA would not apply. Proposed
section 61CYA operates in this manner to ensure that (once a split in the bloc of three
licences occurs) audiences in the three relevant licence areas are not provided with a
greater quantity of material of local significance more directly relevant to their locality and
then (if the bloc re-forms) later denied this more directly relevant material. It also ensures
that the proposed amendments to Division 5D in Part 5 of the BSA are targeted at
specifically addressing the one anomalous circumstance (relating to the commonly
controlled licences for the Geraldton TV1, Kalgoorlie TV1, and South West and Great
Southern TV1 licence areas) which currently exists.
Material of local significance
Proposed subsection 61CYA(2) would modify the test for determining whether material is
material of local significance in relation to the local area of a relevant licence for the
purposes of satisfying the local programming requirements under section 61CX.
This provision would stipulate that material that relates directly to the combined
designated Western Australian commercial television broadcasting local area is taken to be
material that relates directly to the local area of the relevant licence; and similarly that
material that relates directly to the combined designated Western Australian commercial
television broadcasting licence area is taken to be material that relates directly to the
licence area of the relevant licence. This ensures that material which would be considered
material of local significance relating to one of the three relevant licences, may be counted
in all three of the relevant licence areas as though it was local material for the purposes of
each licence.
The requirement under section 61CX for the licensee to broadcast material of local
significance for each licence area would remain, with the licensee required to accumulate
points individually for each licence area. However, the operation of the deeming rules in
proposed section 61CYA would mean the licensee could rely on material relating to any of
the three licence areas or corresponding local areas that is broadcast in the relevant licence
area when calculating the accumulation of points for that relevant licence area to satisfy
the licence conditions.
This is to help ensure that, were relevant trigger events to occur, the two commercial
television broadcasters in regional Western Australia (who broadcast to a geographic area
of an equivalent size) would need to source a similar quantity of material to satisfy their
local content obligations.
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Points system
Proposed subsection 61CYA(3) would modify the effect of the points table at subsection
61CY(3) as it applies to the relevant three licences for the purposes of accumulating points
for material of local significance. Where section 61CYA applies, references in the table at
subsection 61CY(3):
to local area are to be read as though they refer to the combined local area of the
three relevant licences; and
to licence area are to be read as though they refer to the combined licence area of
the three relevant licences.
This provision would give effect to the intended accumulation of points in each local area
by reason of having broadcast material that relates to the combined local area relating to
the three licences.
Proposed subsection 61CYA(4) would broaden the application of any additional rules that
are set out in a local programming determination made by the ACMA for the purposes of
paragraph (d) of item 1 of the table at subsection 61CY(3) so that these additional
requirements would extend to the combined local area of the three relevant licences. These
are requirements that apply in addition to those set out in paragraphs (a), (b) and (c) of
item 1 of the table at subsection 61CY(3) in order to accumulate the maximum 3 points for
each minute of material of local significance.
It is necessary to broaden the application of any such additional rules in this manner so
that material broadcast by a designated Western Australian commercial television
broadcasting licensee that relates to any of the local areas that make up the combined
designated Western Australian commercial television broadcasting local area (or that
meets any other 'local area' related requirements for any of the relevant local areas) will,
provided it meets other relevant requirements, be regarded as material of local significance
that accumulates points in the local area in which it is broadcast. This is to help ensure that
if a relevant trigger event occurs, the two commercial television broadcasters in regional
Western Australia would need to source a similar quantity of material to satisfy their local
content obligations.
Proposed subsection 61CYA(5) would provide that subsection 61CY(5) (which limits the
points of material of local significance that may relate directly to a licensee's licence area)
has effect as though a reference in that subsection to the licensee's licence area were a
reference to the combined designated Western Australian commercial television
broadcasting licence area. This means that a maximum of 50% of the points accumulated
in the applicable local areas can be attributed to material relating to the combined licence
area of the three relevant licences. This allows the limitation to apply to the three relevant
licences in an equivalent way to other commercial television broadcasting licences.
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Proposed subsection 61CYA(6) would provide that subsection 61CY(7) (which limits the
points that may be accumulated in a local area for the broadcast of community service
announcements) has effect as though a reference in those paragraphs to the area were a
reference to the combined designated Western Australian commercial television
broadcasting local area. This means that the limit on the broadcast of community service
announcements applies to the combined local area of the three relevant licences, as
opposed to the local area of each licence individually. This means that the limitation
applies equally across the combined local area of the three relevant licences.
Again, proposed subsections 61CYA(5) and (6) are necessary to help ensure that if a
relevant trigger event occurs, the two commercial television broadcasters in regional
Western Australia would need to source a similar quantity of material to satisfy their local
content obligations.
'Under common control'
Item 8 would also insert new section 61CYB, which sets out when the three designated
Western Australian commercial television broadcasting licences are considered to be
'under common control' for the purposes of paragraphs 61CYA(1)(c) and (d).
Proposed subsection 61CYB(1) provides that the designated Western Australian
commercial television broadcasting licences will be considered to be under common
control if, at a particular time, a person controls each designated Western Australian
commercial television broadcasting licence.
Proposed subsection 61CYB(2) provides that for the purposes of subsection 61CYB(1) a
person controls a designated Western Australian commercial television broadcasting
licence if the person holds the licence or is in a position to exercise control of the licence.
Schedule 1 to the BSA sets out mechanisms that are to be used in deciding whether a
person is in a position to exercise control of a licence.
Worked example
What follows is a scenario used to illustrate the application of section 61CYA and how
points for local content are accumulated under the current arrangements, and how they
would accumulate under the amended arrangements. The scenario illustrates the
accumulation of points through the examples of local news and community service
announcements.
Example: Local news
In this part of the scenario, a range of points that can be accrued is given. This is to reflect
the different point values placed on local content in the table in subsection 61CY(3). The
minimum value in the range applies if all of the local news relates directly to the local
area, which accrues 2 points per minute (as per Item 2 of the table). The maximum value
in the range would apply if all of the local news depicts people, places or things in the
local area, which accrues 3 points per minute (as per Item 1 of the table).
Company A is in a position to control four Western Australian commercial television
broadcasting licences:
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Geraldton TV1
Kalgoorlie TV1
South West and Great Southern TV1
Western Zone TV1
Following a trigger event, all four of Company A's commercial television broadcasting
licences are controlled by Company B, a metropolitan broadcaster. Local content
obligations are placed on each of the three regional Western Australian commercial
television broadcasting licences (Geraldton TV1, Kalgoorlie TV1, and South West and
Great Southern TV1). As a result, Company B must ensure that 100 points of local content
is accumulated in the local area for each relevant licence, during each week in a timing
period.
Company B organises half hour 6 pm news bulletins on each weekday, which include
news that meets the definition of local content. One such broadcast provides material that
relates directly to the four Western Australian commercial television broadcasting licence
areas in accordance with the table below.
South West and
Geraldton TV1 Kalgoorlie TV1 Great Southern TV1 Western Zone TV1
Example Bulletin
2:00 1:30 9:00 1:00
(Minutes of local content)
(Note: It is also assumed that this bulletin may include national news that would not be considered local content)
Existing arrangements
Under the existing arrangements, Company B would accumulate points in the following
ranges for each local area:
Geraldton TV1 - 4-6 points
Kalgoorlie TV1 - 3-4.5 points
Southern West and Great Southern TV1 - 18-27 points
In each relevant local area, only the parts of the news bulletin that contain local content
related to that local area accumulate points. Furthermore the minute of content relating to
Western Zone TV1 does not accumulate points as it is not relate to the licence area of any
of the relevant licences, and remote areas are excluded from the local content obligations.
Proposed arrangements
Under the proposed arrangements, provided subsection 61CYA(1) applies, Company B
would be able to accumulate points for each local area for the broadcast of content that is
relevant to any of the three local areas that correspond to the three licences it controls.
This is because the proposed subsection 61CYA(2) modifies the way in which content
accumulates points for the purposes of satisfying a licensee's local content obligations,
effectively providing an expanded local area that Company B can accumulate points
within.
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Therefore, Company B would accumulate points in the following ranges for each local
area:
Geraldton TV1 - 25-37.5 points
Kalgoorlie TV1 - 25-37.5 points
Southern West and Great Southern TV1 - 25-37.5 points
These point ranges are provided due to the amendment of the points system, proposed by
subsection 61CYA(3). Under the proposed arrangements, local content relating to any one
local area can be used to accumulate points in all three of the three relevant local areas.
This is due to the expanded local area the measure provides. As a result, should Company
B simulcast the example bulletin in all three regional Western Australian commercial
television broadcasting licences it controls, it can claim points for all local content that
relates to the three areas combined.
The minute of content relating to Western Zone TV1 does not accumulate points as it is
not part of the designated local area for each licence, nor would it relate to the licence area
of the relevant licence.
As the measure would still require each licensee to meet its local content obligations in
each licence area per section 61CX, compliance reports would still need to be completed
for each regional Western Australian commercial television broadcasting licence under
section 61CZB of the BSA.
Example: Community service announcements
During the example bulletin detailed above, Company B agrees to broadcast a community
service announcement for an upcoming event related to the Geraldton TV1 local area. The
community service announcement is broadcast twice during two separate advertising
breaks in the example bulletin and lasts for a combined time of 1 minute. Company B
simulcasts the example bulletin to the local area of each licence area it controls (as well as
Western Zone TV1). The community service announcement accumulates one point under
item 3 of the table at subsection 61CY(3), when relevant.
Existing arrangements
Under the existing arrangements, Company B may accumulate points in a local area for
community service announcements under subsection 61CY(7). This is capped at five
broadcasts of the same community service announcement. Further, the number of points
Company B can accumulate from community service announcements during a single
timing period is capped at 10% of the total points accumulated (effectively 60 minutes of
community service announcements per timing period).
Company B would accumulate one point in the local area relevant to the Geraldton TV1
licence as a result of the broadcast of the community service announcement during the
example bulletin, and no points in the other two local areas. This is because the
community service announcements would only be considered as local content to the
Geraldton TV1 local area.
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Proposed arrangements
Under the proposed arrangements, Company B may accumulate points for the broadcast of
the community service announcements in the expanded local area provided under
proposed subsection 61CYA(2). The effect of proposed subsection 61CYA(6) would be to
allow these points to be accumulated across the three local areas by community service
announcements. Consistent with the existing arrangements, this is capped at 5 broadcasts
of the same community service announcement due to proposed subsection 61CYA(6). The
10% limit on points accumulated from community service announcements during a single
timing period by subsection 61CY(8) also applies.
Company B would accumulate one point in each local area as a result of the broadcast of
the community service announcements during the example bulletin due to the amendments
relating to the accumulation of points that would allow material that relates directly to one
local area to accumulate one point in all three of the local areas under proposed subsection
61CYA(3).
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