(e) if the breach relates to a commercial television broadcasting licence—20,000 penalty units; or
(f) if the breach relates to a commercial radio broadcasting licence—2,000 penalty units.
(1A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the provision breached was a provision of Division 2 or 3.
(2) A person who breaches subsection (1) commits a separate offence in respect of each day (including a day of a conviction under this subsection or any subsequent day) during which the breach of Division 2 or 3 continues.
(3) A prosecution for an offence under this section against a person in relation to a transaction cannot be commenced if the ACMA has given the person a notice under section 70 in relation to the transaction and the time for compliance with the notice has not expired.
67 Applications for prior approval of temporary breaches
(1) A person may, before a transaction takes place or an agreement is entered into that would place a person in breach of a provision of Division 2 or 3, make an application to the ACMA for an approval of the breach.
(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 notice in writing 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 or the agreement was entered into, it would place a person in breach of a provision of Division 2 or 3; and
(b) the person will take action to ensure that the breach of that provision ceases; and
(c) the breach is incidental to the objectives of the transaction or agreement;
the ACMA may, by notice in writing given to the applicant, approve the breach arising as a result of the transaction or agreement and specify a period during which action must be taken to ensure that the breach ceases, being a period that commences on the day on which the transaction takes place or the agreement is entered into.
(5) The period specified in the notice must be 6 months, one year or 2 years.
(6) The ACMA may specify in a notice the action that the ACMA considers the person is to take so that the person is no longer in breach of the relevant provision.
(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;
approve or refuse to approve the breach arising as a result of the transaction or agreement, the ACMA is to be taken to have approved the breach and allowed a period of 2 years before which the breach must cease.
68 Extension of time for compliance with notice
(1) A person who has been given a notice under section 67 may, within 3 months before the end of the period specified in the notice, apply in writing to the ACMA for an extension of that period.
(2) The ACMA is not required to grant an extension, but may do so if, in its opinion, 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 notice in writing 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.
(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.
69 Breach of notice under section 67 to constitute an offence
A person who fails to comply with a notice under section 67 commits an offence.
Penalty:
(a) if the breach relates to a commercial television broadcasting licence—20,000 penalty units; or
(b) if the breach relates to a commercial radio broadcasting licence—2,000 penalty units.
Division 8—Action by the ACMA
70 Notices by the ACMA
(1) If the ACMA is satisfied that a person is in breach of a provision of Division 2 or 3, the ACMA may, by notice in writing given to:
(a) the person; or
(b) if the person is not the licensee and the breach is one that can be remedied by the licensee—the licensee;
direct the person or the licensee to take action so that the person is no longer in breach of that provision.
(2) The ACMA is not to give a notice to a person under subsection (1) in relation to a breach if an approval under section 67 has been given in respect of the breach and the period specified under that section, or an extension of that period, has not expired.
(3) The notice is to specify a period during which the person must take action to ensure that the person is no longer in that position.
(4) The period must be one month, 6 months, one year or 2 years.
(5) If the ACMA is satisfied that the breach was deliberate and flagrant, the period specified in the notice must be one month.
(6) If the ACMA gives a notice under subsection (1) in respect of a breach that the ACMA had approved under section 67, the ACMA must specify a period of one month in the notice under subsection (1).
(7) If the ACMA is satisfied that the person breached the relevant provision as a result of the actions of other persons none of whom is an associate of the person, a period of one year or 2 years must be specified, but such a period must not be specified in other circumstances.
(8) The Parliament recognises that, if a period of one month is specified in a notice, the person to whom the notice is given or another person may be required to dispose of 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 deliberate and flagrant breaches of this Part.
71 Extension of time for compliance with notice
(1) A person who has been given a notice under section 70 may, within 3 months before the end of the period specified in the notice, 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 notice was one month.
(3) The ACMA is not required to grant an extension, but may do so if, in its opinion, 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 notice in writing 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:
(a) the period originally specified in the notice; or
(b) one year;
whichever is the lesser.
(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 notice; and
(b) the difficulties experienced by the applicant in attempting to comply with the notice; and
(c) the seriousness of the breach that led to the giving of the notice;
but the ACMA must not have regard to any financial disadvantage that compliance with the notice 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 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.
72 Breach of notice under section 70 to constitute an offence
A person who fails to comply with a notice under section 70 commits an offence.
Penalty:
(a) if the breach relates to a commercial television broadcasting licence—20,000 penalty units; or
(b) if the breach relates to a commercial radio broadcasting licence—2,000 penalty units.
Division 9—Special provision for small markets
73 Additional licence under section 38A not to result in breach of ownership limits
(1) If an additional licence has been allocated under section 38A to the holder of an existing licence, the existing licence and additional licence are to be treated, for the purposes of this Part, as being only one licence.
(2) This section does not apply to the licences at any time after either of the licences is first held by a different person (whether or not it continues to be held by a different person).
73A Additional licence allocated under section 38B not to result in breach of control rules
(1) If an additional licence is allocated under section 38B, then for the purposes of Divisions 2 and 3 of this Part:
(a) the licence is to be disregarded in relation to a person who is in a position to exercise control of that licence at the time it is allocated; and
(b) the licence is to be so disregarded until that person first ceases to be in a position to exercise control of that licence.
(2) If, during the time a licence is disregarded in relation to a person under subsection (1), that person is in a position to exercise control of another person who is in a position to exercise control of the licence, then, for the purposes of Divisions 2 and 3 of this Part, the licence is also to be disregarded during that time in relation to that other person.
Division 10—Prior opinions by the ACMA
74 Requests to ACMA to give an opinion on whether a person is in a position to control a licence, a newspaper or a company
(1) A person may apply to the ACMA for an opinion as to whether:
(a) the person is in a position to exercise control of a commercial television broadcasting licence, a commercial radio broadcasting licence, a satellite subscription television broadcasting licence, a newspaper or a company; or
(b) the person would, if a transaction took place or a contract, agreement or arrangement were entered into, being one details of which are given in the application, be in a position to exercise control of a commercial television broadcasting licence, a commercial radio broadcasting licence, a satellite subscription television broadcasting licence, a newspaper or a company.
(2) An application must be in accordance with a form approved in writing by the ACMA, and must state the applicant’s opinion as to whether the applicant is, or would be, in a position to exercise control of the commercial television broadcasting licence, the commercial radio broadcasting licence, the satellite subscription television broadcasting licence, the newspaper or the company.
(3) If the ACMA considers that additional information is required before an opinion can be given, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(4) The ACMA must, as soon as practicable after:
(a) receiving the application; or
(b) if the ACMA has requested further information—receiving that further information;
give the applicant, in writing, its opinion as to whether the applicant is in a position to exercise control of the relevant licence, newspaper or company.
(5) If the ACMA has given an opinion under this section to a person that the person is not in a position to exercise control of a licence or newspaper, neither the ACMA nor any other Government agency may, while the circumstances relating to the applicant and the licence, a newspaper or a company remain substantially the same as those advised to the ACMA in relation to the application for the opinion, take any action against the person under this Act on the basis that the person is in a position to exercise control of the licence, newspaper or company.
(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;
give the applicant, in writing, its opinion as to whether the applicant is in a position to exercise control of the relevant licence, newspaper or company, the ACMA is to be taken to have given an opinion at the end of that period that accords with the applicant’s opinion.
(7) The ACMA may charge a fee for providing an opinion under this section.
Division 10A—Register of Foreign Owners of Media Assets
Subdivision A—Introduction
74A Simplified outline of this Division
• The ACMA must maintain a Register of Foreign Owners of Media Assets.
• The Register of Foreign Owners of Media Assets must set out, for each Australian media company, information about each foreign stakeholder in the company.
• Foreign stakeholders must notify the ACMA of their company interests in Australian media companies.
Note: For company interests, see section 6.
74B Definitions
In this Division:
ACMA official has the same meaning as in the Australian Communications and Media Authority Act 2005.
Australia, when used in a geographical sense, includes all the external Territories.
Australian media company means:
(a) a company that holds a commercial television broadcasting licence; or
(b) a company that holds a commercial radio broadcasting licence; or
(c) a company that is:
(i) the publisher of a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence; and
(ii) a constitutional corporation.
designated information, in relation to a person, means:
(a) if the person is an individual:
(i) the person’s date of birth; and
(ii) the country in which the person is ordinarily resident; and
(b) if the person is a corporation—the country in which the corporation was formed; and
(c) if the person is a trustee of a trust:
(i) the name of the trust; and
(ii) the country in which the trust was established; and
(d) if the person is a foreign government investor as the result of the application of paragraph 17(a) of the Foreign Acquisitions and Takeovers Regulation 2015 to a separate government entity of a foreign country or a part of a foreign country—the foreign country or the part of the foreign country, as the case may be; and
(e) if the person is a foreign government investor wholly or partly as the result of the application of paragraph 17(b), (c), (d) or (e) of the Foreign Acquisitions and Takeovers Regulation 2015 to a foreign government—the foreign government; and
(f) if the person is a foreign government investor wholly or partly as the result of the application of paragraph 17(b), (c), (d) or (e) of the Foreign Acquisitions and Takeovers Regulation 2015 to a separate government entity of a foreign country or a part of a foreign country—the foreign country or the part of the foreign country, as the case may be; and
(g) the following contact details:
(i) the person’s address;
(ii) the person’s email address (if any);
(iii) the person’s telephone number (if any).
foreign government has the same meaning as in the Foreign Acquisitions and Takeovers Act 1975.
foreign government investor has the same meaning as in the Foreign Acquisitions and Takeovers Act 1975.
foreign person has the same meaning as in the Foreign Acquisitions and Takeovers Act 1975.
foreign stakeholder, in relation to an Australian media company, has the meaning given by section 74C.
initial disclosure period means the period of 6 months beginning at the commencement of this Division.
person includes a foreign person.
separate government entity has the same meaning as in the Foreign Acquisitions and Takeovers Act 1975.
74C Foreign stakeholder
For the purposes of this Division, if a foreign person has company interests in an Australian media company of 2.5% or more, that person is a foreign stakeholder in that company.
Subdivision B—Register of Foreign Owners of Media Assets
74D Register of Foreign Owners of Media Assets
(1) After the end of the initial disclosure period, the ACMA is to maintain a register, to be known as the Register of Foreign Owners of Media Assets.
(2) The Register of Foreign Owners of Media Assets is to be maintained by electronic means.
(3) The Register of Foreign Owners of Media Assets is to be made available for inspection on the internet.
(4) The Register of Foreign Owners of Media Assets is not a legislative instrument.
74E Information to be set out in the Register of Foreign Owners of Media Assets
(1) The Register of Foreign Owners of Media Assets must set out, for each Australian media company, the following information about each foreign stakeholder in the company:
(a) the name of the foreign stakeholder;
(b) the foreign stakeholder’s company interests in the company;
(c) the method used to determine those company interests;
(d) the reason why the foreign stakeholder is a foreign person;
(e) if the foreign stakeholder is an individual—the country in which the foreign stakeholder is ordinarily resident;
(f) if the foreign stakeholder is a corporation—the country in which the corporation was formed;