(e) the licensee or the company or more than 50% 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.
(2) Paragraph (1)(b) does not apply to the provision of programs by a person to a licensee under an agreement for the supply of programs to a licensee if the conditions of the agreement relate only to the programs so supplied or their promotion.
(3) An employee of a licensee or of a non‑licensee company is not, except through an association with another person, to be regarded as being in a position to exercise control of a licence or a company under subclause (1) purely because of being an employee.
(4) More than one person may be in a position to exercise control of a licence or a company.
(5) The following are examples of situations that, depending on the circumstances, may be relevant in determining whether a person is in a position to exercise control of 2 or more licences:
(a) the licensees share any or all of the following:
(i) equipment;
(ii) studios;
(iii) other production facilities;
(iv) transmission facilities;
(v) human resources;
(vi) other resources;
(b) the program content of a substantial percentage of the total number of hours of programs broadcast under one of those licences is the same as the program content of a substantial percentage of the total number of hours of programs broadcast under the other licence or licences;
(c) the licensees have financial relationships with each other;
(d) both of the following subparagraphs apply:
(i) the person is in a position to exercise control of one or more of the licences;
(ii) the person has a financial relationship with another person who is in a position to exercise control of the other licence or one or more of the other licences.
3 When person is in a position to exercise control of a newspaper
(1) For the purposes of this Schedule, a person is in a position to exercise control of a newspaper if:
(a) the person is the publisher of the newspaper; or
(b) the person is in a position, either alone or together with an associate of the person and whether directly or indirectly:
(i) to exercise control of a significant proportion of the operations of the publisher in publishing the newspaper; or
(ii) to exercise control of the selection or provision of a significant proportion of the material to be published in the newspaper; or
(c) if the newspaper is published by a company:
(i) the person is in a position, either alone or together with an associate of the person, to exercise control of the company; or
(ii) the person, either alone or together with an associate of the person, is in a position to veto any action taken by the board of directors of the company; or
(iii) the person, either alone or together with an associate of the person, is in a position to appoint or secure the appointment of, or veto the appointment of, at least half of the board of directors of the company; or
(iv) the person, either alone or together with an associate of the person, is in a position to exercise, in any other manner, whether directly or indirectly, direction or restraint over any substantial issue affecting the management or affairs of the company; or
(v) the company or more than 50% of its directors:
(A) act, or are accustomed to act; or
(B) 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.
(2) Subparagraph (1)(b)(ii) does not apply to the provision of material by a person to a newspaper under an agreement for the supply of material of that kind if the conditions of the agreement relate only to the material so supplied.
(3) An employee of the publisher of a newspaper is not, except through an association with another person, to be regarded as being in a position to control the newspaper under subclause (1) purely because of being an employee.
4 Special provisions for authorised lenders
(1) Subject to subclause (2), if an authorised lender has a loan agreement with a media company:
(a) the agreement; and
(b) any other agreement or transaction that is:
(i) associated with the loan agreement; and
(ii) entered into in the ordinary course of carrying on a business of providing financial accommodation; and
(c) anything done under the loan agreement or under an agreement or transaction referred to in paragraph (b), being a thing done in the ordinary course of carrying on a business of providing financial accommodation;
are to be disregarded in deciding whether the lender or any controller of the lender is in a position to exercise control of the media company or of any licence or newspaper of which the media company is in a position to exercise control.
(2) Subclause (1) does not apply in relation to being in a position to exercise control of a licence if the lender or a controller of the lender:
(a) prevents the licensee from complying with a condition of the licence; or
(b) controls the selection or provision of any of the programs to be broadcast by the licensee; or
(c) appoints or secures the appointment of at least half of the board of directors of the licensee; or
(d) vetoes the appointment of at least half of the board of directors of the licensee otherwise than:
(i) under a loan agreement or an agreement or transaction referred to in paragraph (1)(b); and
(ii) in the ordinary course of carrying on a business of providing financial accommodation.
(3) Subclause (1) does not apply in relation to being in a position to exercise control of a newspaper if the lender or a controller of the lender:
(a) controls the selection or provision of any of the material to be published in the newspaper; or
(b) appoints or secures the appointment of at least half of the board of directors of the media company that publishes the newspaper; or
(c) vetoes the appointment of at least half of the board of directors of the media company that publishes the newspaper otherwise than:
(i) under a loan agreement or an agreement or transaction referred to in paragraph (1)(b); and
(ii) in the ordinary course of carrying on a business of providing financial accommodation.
(4) In this clause:
authorised lender means:
(a) an ADI (authorised deposit‑taking institution) within the meaning of the Banking Act 1959; or
(b) a corporation formed under the law of a State or Territory to carry on the business of banking within Australia; or
(c) a corporation whose sole or principal business is the provision of financial accommodation to other persons, being a corporation:
(i) that is a registered entity under the Financial Sector (Collection of Data) Act 2001; or
(ii) in respect of which a declaration under subclause (5) is in force; or
(iii) in respect of which an application for such a declaration has been made but not finally disposed of.
controller, in relation to an authorised lender, means a person who is in a position to exercise control of the lender.
loan agreement, in relation to a company, means an agreement entered into in the ordinary course of carrying on a business of providing financial accommodation under which:
(a) financial accommodation is provided to the company; or
(b) money is deposited with the company; or
(c) a debt or liability (whether or not financial) of the company arises;
whether or not:
(d) the financial accommodation, money, debt or liability is secured; or
(e) money payable by the company under the agreement is presently payable; or
(f) liability arising under the agreement is unconditional.
media company means:
(a) a company that holds a commercial television broadcasting licence or a commercial radio broadcasting licence; or
(b) a company that holds a subscription television broadcasting licence; or
(ba) a company that holds an international broadcasting licence; or
(c) a company that publishes a newspaper; or
(d) a company that is in a position to exercise control of such a company.
(5) The ACMA may, in writing, declare a corporation (whether formed inside or outside Australia) whose sole or principal business is the provision of financial accommodation to other persons to be an authorised lender for the purposes of this clause.
Part 3—Deemed control
5 Explanation of examples
In an example in this Part, a percentage written next to an arrow indicates that the person before the arrow has company interests in the company to which the arrow is pointing which exceeds that percentage.
6 The 15% rule
(1) If a person has company interests in a company exceeding 15%, the person is to be regarded as being in a position to exercise control of the company.
7 Application of method through chain of companies
The method described in clause 6 can be applied in the case of a chain of companies. Where a company interest of more than 15% is maintained throughout the chain, the person is to be regarded as being in a position to exercise control of the last company in the chain.
Example:
An example which sets out a person who has a 15% company interest in company A, which in turn has a 15% company interest in company B, which in turn has a 15% company interest in company C, which in turn has a 15% company interest in company D
Here the person is to be regarded as being in a position to exercise control of Company D.
Part 4—Tracing of ownership
8 Tracing of ownership
Company interests can be traced through a chain of companies using a method known as the fractional tracing method. This method applies a formula to decide what company interest a person has.
This method is best demonstrated by an example.
Example:
An example which sets out a person with a 30% company interest in company A, which in turn has a 10% company interest in company B
The person’s company interest in Company B is worked out using the formula:
Start formula Company Interest 1 times Company Interest 2 end formula
where:
Company Interest 1 is the company interest of the person, expressed as a fraction, in Company A.
Company Interest 2 is the company interest of Company A, expressed as a fraction, in Company B.
In this case, the formula produces: 3/10 X 1/10, which means that the person has a 3% company interest in Company B.
Interests traced in this way can be added. If Company B is a licensee and the person had, through other chains of companies, a further 12.5% company interest in Company B, the person would be regarded as being in a position to exercise control of Company B under Part 3 of this Schedule because the person would have company interests exceeding 15% in Company B.
Example:
An example which shows how company interest determined through the fractional tracing method can be added together
In this example, the person has a 15.5% company interest in Company B. This is made up of 3% (through Company A), 8% (through Company C) and 4.5% (through Company D).
This method of tracing ownership may be used through any number of companies. However, the ACMA is not required to trace every minor company interest.
Schedule 2—Standard conditions
Part 1—Interpretation
1 Definitions
(1) In this Schedule:
disclosure entity has the meaning given by:
(a) section 321B of the Commonwealth Electoral Act 1918; or
(b) paragraph (e) of the definition of disclosure entity in section 110A of the Referendum (Machinery Provisions) Act 1984.
election means an election to a Parliament or a local government authority of a State or Territory.
election advertisement, in relation to an election, means:
(a) an advertisement:
(i) that contains election matter that relates to that election; and
(ii) in respect of the broadcasting of which the relevant licensee has received or is to receive, directly or indirectly, any money or other consideration; or
(b) an announcement containing a statement to the effect that a program that is to be or has been broadcast is or was sponsored by a person or persons and indicating that the person is a candidate, or one or more of the persons is or are candidates, at the election; or
(c) an announcement containing a statement to the effect that a program that is to be or has been broadcast is or was sponsored by a particular political party where a candidate at the election belongs to that party.
election matter, in relation to an election, means matter of any of the following kinds:
(a) matter commenting on, or soliciting votes for, a candidate at the election;
(b) matter commenting on, or advocating support of, a political party to which a candidate at the election belongs;
(c) matter commenting on, stating or indicating any of the matters being submitted to the electors at the election or any part of the policy of a candidate at the election or of the political party to which a candidate at the election belongs;
(d) matter referring to a meeting held or to be held in connection with the election.
election period means:
(a) in relation to an election to the Legislative Council of Tasmania, or an ordinary election to the Legislative Assembly for the Australian Capital Territory—the period that starts 33 days before the polling day for the election and ends at the close of the poll on that day; and
(b) in relation to any other election to a Parliament—the period that starts on:
(i) the day on which the proposed polling day for the election is publicly announced; or
(ii) the day on which the writs for the election are issued;
whichever happens first, and ends at the close of the poll on the polling day for the election; and
(c) in relation to an election to a local government authority—the period that starts 33 days before the polling day for the election and ends at the close of the poll on that day; and
(d) in relation to a referendum whose voting day is the same as the polling day for an election to the Parliament of the Commonwealth—the election period in relation to that election; and
(e) in relation to any other referendum—the period that starts 33 days before the voting day for the referendum and ends at the close of voting on that day.
person includes a political party, a corporation and any other association (whether incorporated or unincorporated).
political matter means any political matter, including the policy launch of a political party.
radiocommunications device has the same meaning as in the Radiocommunications Act 1992.
referendum means the submission to the electors of a proposed law for the alteration of the Constitution, whether or not the proposal to make the submission has been announced.
referendum advertisement, in relation to a referendum, means an advertisement:
(a) that contains referendum matter (within the meaning of the Referendum (Machinery Provisions) Act 1984) that relates to that referendum; and
(b) in respect of the broadcasting of which the relevant licensee has received or is to receive, directly or indirectly, any money or other consideration.
registered political party means a political party that is registered under Part XI of the Commonwealth Electoral Act 1918.
relevant period:
(a) in relation to an election—means the period that commences at the end of the Wednesday before the polling day for the election and ends at the close of the poll on that polling day; and
(b) in relation to a referendum—means the period that commences at the end of the Wednesday before the voting day for the referendum and ends at the close of voting on that voting day.
relevant town or city of an entity that authorised the broadcast of political matter means:
(a) if the entity has a principal office—the town or city in which the office is located; or
(b) if the entity does not have a principal office, but does have premises—the town or city in which the premises are located; or
(c) otherwise—the town or city in which the natural person who was responsible for giving effect to the authorisation lives.
required particulars has the meaning given by subclause (2).
required period, in relation to the keeping of a record in relation to political matter, means:
(a) subject to paragraph (b), the period of 6 weeks commencing on the day on which the matter was broadcast; or
(b) if the matter relates to an election or referendum and was broadcast during the election period in relation to the election or referendum—the period commencing on the day on which the matter was broadcast and ending:
(i) at the end of the period referred to in paragraph (a); or
(ii) if that period ends before the end of the election period in relation to the election or referendum—the day on which that election period ends;
or such longer period as the ACMA, before the end of that period, directs by notice in writing to the broadcaster concerned.
Meaning of required particulars
(2) The required particulars are:
(a) the particulars set out in the following table; and
(b) any other particulars determined under subsection 321D(7) of the Commonwealth Electoral Act 1918 for the purposes of this paragraph.