(b) if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in 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(ii) have not been withdrawn or cancelled; and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.
61AK Extension of time for compliance with prior approval notice
(1) A person who has been given a notice under section 61AJ 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) one year;
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:
(a) receiving the application; or
(b) if the ACMA has requested further information—receiving that further information;
extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:
(c) the period originally specified in the notice; or
(d) one year;
whichever is the lesser period.
(7) If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.
61AL Breach of prior approval notice—offence
(1) A person commits an offence if:
(a) the person has been given a notice under section 61AJ; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
61AM Breach of prior approval notice—civil penalty
(1) A person must comply with a notice under section 61AJ.
(2) Subsection (1) is a civil penalty provision.
(3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.
Subdivision C—Remedial directions
61AN Remedial directions—unacceptable media diversity situation
(1) If, on or after the commencement day, the ACMA is satisfied that an unacceptable media diversity situation exists in relation to the licence area of a commercial radio broadcasting licence, the ACMA may give a person such written directions as the ACMA considers appropriate for the purpose of ensuring that that situation ceases to exist.
(2) The ACMA’s directions may include:
(a) a direction requiring the disposal of shares or interests in shares; or
(b) a direction restraining the exercise of any rights attached to:
(i) shares; or
(ii) interests in shares; or
(c) a direction prohibiting or deferring the payment of any sums due to a person in respect of shares, or interests in shares, held by the person; or
(d) a direction that any exercise of rights attached to:
(i) shares; or
(ii) interests in shares;
be disregarded.
(3) Subsection (2) does not limit subsection (1).
(4) The ACMA must not give a direction under subsection (1) if the direction would have the effect of requiring a registered controller of a registered media group to cease to be in a position to exercise control of any of the media operations in the group.
(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 Review 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 Review 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.
(5) A direction under subsection (1) must specify a period within which the person must comply with the direction.
(6) The period must not be longer than 2 years.
(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.
(7) If the ACMA is satisfied that the person:
(a) acted in good faith; and
(b) took reasonable precautions, and exercised due diligence, to avoid:
(i) the unacceptable media diversity situation coming into existence; or
(ii) if the unacceptable media diversity situation already existed—a reduction in the number of points in the licence area concerned;
the period specified in the direction must be 2 years.
(8) If the ACMA is satisfied that the person acted flagrantly in breach of section 61AG or 61AH, the period specified in the direction must be one month.
(9) The Parliament recognises that, if a period of one month is specified in a direction, the person to whom the direction is given or another person may be required to dispose of shares or interests in shares in a way, or otherwise make arrangements, that could cause the person a considerable financial disadvantage. Such a result is seen as necessary in order to discourage flagrant breaches of sections 61AG and 61AH.
61AP Extension of time for compliance with remedial direction
(1) A person who has been given a direction under section 61AN may, within 3 months before the end of the period specified in the direction 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) An application for an extension cannot be made if the period specified in the direction was one month.
(3) In the case of a direction under section 61AN, the ACMA may grant an extension if it is of the opinion that:
(a) an unacceptable media diversity situation is likely to cease to exist in the licence area concerned within 3 months after the end of the period specified in the direction under section 61AN; and
(b) the applicant acted in good faith; and
(c) an extension is appropriate in all the circumstances.
(4) 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.
(5) The ACMA must not grant more than one extension, and the period of any extension must not exceed 3 months.
(6) In deciding whether to grant an extension to a person, the ACMA is to have regard to:
(a) the endeavours that the applicant made in attempting to comply with the direction; and
(b) the difficulties experienced by the applicant in attempting to comply with the direction; and
(c) the seriousness of the situation that led to the giving of the direction under section 61AN;
but the ACMA must not have regard to any financial disadvantage that compliance with the direction may cause.
(7) If the ACMA does not, within 45 days after:
(a) receiving the application; or
(b) if the ACMA has requested further information—receiving that further information;
extend the period or refuse to extend the period originally specified in the direction, the ACMA is to be taken to have extended that period by 3 months.
(8) If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.
61AQ Breach of remedial direction—offence
(1) A person commits an offence if:
(a) the person has been given a direction under section 61AN; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a requirement in the direction.
Penalty: 20,000 penalty units.
(2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
61AR Breach of remedial direction—civil penalty
(1) A person must comply with a direction under section 61AN.
(2) Subsection (1) is a civil penalty provision.
(3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.
Subdivision D—Enforceable undertakings
61AS Acceptance of undertakings
(1) The ACMA may accept any of the following undertakings:
(a) a written undertaking given by a person that the person will take specified action to ensure that an unacceptable media diversity situation does not exist in relation to the licence area of a commercial radio broadcasting licence;
(b) if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—a written undertaking given by a person that the person will take specified action to ensure that there is not a reduction in the number of points in the licence area.
(2) The undertaking must be expressed to be an undertaking under this section.
(3) The person may withdraw or vary the undertaking at any time, but only with the consent of the ACMA.
(4) The ACMA may, by written notice given to the person, cancel the undertaking.
(5) The ACMA may publish the undertaking on its website.
61AT Enforcement of undertakings
(1) If:
(a) a person has given an undertaking under section 61AS; and
(b) the undertaking has not been withdrawn or cancelled; and
(c) the ACMA considers that the person has breached the undertaking;
the ACMA may apply to the Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that the person has breached the undertaking, the court may make any or all of the following orders:
(a) an order directing the person to comply with the undertaking;
(b) an order directing the person to pay to the ACMA, on behalf of the Commonwealth, an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;
(c) any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
(d) any other order that the court considers appropriate.
Subdivision E—Register of Controlled Media Groups
61AU Register of Controlled Media Groups
(1) The ACMA is to maintain a register, to be known as the Register of Controlled Media Groups.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
(4) The Register is not a legislative instrument.
(5) The ACMA must begin to comply with subsection (1) as soon as practicable after the start of 1 February 2007.
61AV How a media group is to be entered in the Register
(1) For the purposes of this Subdivision, the ACMA is to enter a media group in the Register by entering in the Register, under a heading for the group:
(a) the names of the media operations in the group; and
(b) the name of the controller, or the names of each of the controllers, of the media operations in the group.
(2) A media group is to be identified in the Register by a unique number assigned by the ACMA.
61AW Explanatory notes may be included in the Register
(1) The ACMA may include explanatory notes in the Register.
(2) Explanatory notes do not form part of a media group’s entry in the Register.
61AX Continuity of media group
(1) For the purposes of this Subdivision, a change in the controller, or any of the controllers, of a media group does not affect the continuity of the group.
(2) For the purposes of this Subdivision, a change in the composition of the media operations in a media group results in the group ceasing to exist.
(3) However, the rule in subsection (2) does not apply to a change in the composition of the media operations in a media group if:
(a) one or more media operations cease to be in the group; and
(b) at least 2 media operations remain in the group; and
(c) there is no increase in the number of media operations that remain in the group.
61AY Initial registration of media groups
(1) If the ACMA is satisfied that a particular media group was a registrable media group in relation to the licence area of a commercial radio broadcasting licence at the start of 1 February 2007, the ACMA must enter the group in the Register.
(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant entry within 2 business days after receiving the notification or the last of the notifications.
(4) If the ACMA makes an entry under subsection (1), the ACMA is to include in the Register a note to the effect that the entry is unconfirmed.
(5) An entry under subsection (1) is taken to have been made at the start of 1 February 2007.
61AZ Registration of newly‑formed media group
(1) If:
(a) the ACMA is satisfied that:
(i) a registrable media group has come into existence on or after 1 February 2007; and
(ii) the media group is not already entered in the Register; and
(b) the ACMA is satisfied that 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;
the ACMA must enter the group in the Register.
(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.