Provided you apply in advance and make an acceptable case, the Australian Communications and Media Authority (the ACMA) may approve control activities that would normally be prohibited under the Broadcasting Services Act 1992 (the BSA).
On 16 October 2017 the Broadcasting Legislation Amendment (Broadcasting Reform) Bill 2017 (the Bill) was passed by Parliament. Following Royal Assent, a number of changes to media control and diversity rules in the Broadcasting Services Act 1992 will take place. Please refer to the ACMA Media Statement for additional information.
The ACMA website will be updated to reflect these changes once the Bill receives Royal Assent.
Prior approval for breaches of statutory control rules
If you are aware that a media transaction you wish to make may lead to a breach of the media control rules, you can apply to the ACMA for prior approval of any breaches of the provisions of Part 5, Division 2 or 3 of the Act in relation to limitations on control and directorships (section 67(1)).
If the ACMA approves the application, then the transaction or agreement may proceed without an offence being committed against the Act.
- Your application must be made before the relevant transaction or agreement is entered into, otherwise the ACMA cannot consider it.
- The ACMA can request further information within 30 days of receiving your application.
- The ACMA must make a decision within 45 days of receiving an application under section 67 or (if the ACMA has requested it) after receiving further information.
Prior approval for transactions creating unacceptable media diversity or 3-way control situations
The ACMA may give prior approval for transactions which cause ‘unacceptable media diversity situations’ or ‘unacceptable three-way control situations’, but only if you apply in advance and propose actions that the ACMA agrees will remedy those situations in an acceptable period of time.
The ACMA can give a notice requiring that action will be taken as a condition of approval. The ACMA may accept an enforceable undertaking which describes the action you must take and alternative action in case that proposed course of action is not implemented for any reason. It will be up to applicants to convince the ACMA that the approval you seek is consistent with the scheme and objects of the Act. You must provide evidence that persuades the ACMA to exercise its powers in your favour.
The ACMA is responsible for enforcing the law and ensuring individuals and legal entities comply with the statutory control rules, and do not breach the prohibitions on ‘unacceptable media diversity situations’ and ‘unacceptable three-way control situations’ without the ACMA’s approval. Breaches of the law without prior approval from the ACMA can result in the imposition of substantial criminal and civil penalties.
Further information on applications to the ACMA for prior approval is available here.
How to apply
There are two forms for prior approvals:
- ACMA B7 - Application for prior approval to a temporary breach of the Statutory Control Rules
- ACMA B11 - Application for prior approval of a transaction resulting in unacceptable media diversity situation or an unacceptable 3-way control situation.
Forms and accompanying guidance notes are available on the Broadcasting forms page. Forms should be submitted by email to Control@acma.gov.au.
When the ACMA is assessing whether to approve a transaction that would result in an unacceptable media diversity situation coming into existence, under the Act it can have regard to any relevant undertakings that have been accepted by the ACMA. Further information can be found on the Enforceable undertakings page.