What is control?
The wide-ranging definition of control in the Broadcasting Services Act 1992 (the BSA) is fundamental to the operation of its ownership and control provisions. All of the ownership and directorship limitations contained in the BSA are couched in terms of whether a person is 'in a position to exercise control' of a licence.
Control is intended to cover various formal and informal arrangements, including trusts, agreements, understandings and practices under which a person comes to be in a position to exercise control over a broadcasting service licence, a newspaper or a company.
Schedule 1 of the BSA contains a legislative essay entitled Control and Ownership of Company Interests which:
- explains factors which may be relevant to considering control
- sets out rules for deciding who is in a position to exercise control of a licence, newspaper or company
- describes a method for tracing company interests.
What are some examples of control?
For complete information about control, refer to Schedule 1 of the BSA.
Normally, if a person has company interests exceeding 15 per cent, the person is regarded as being in a position to exercise control of the company.
Holding company interests is not the only way to be in a position to exercise control. Other examples are if the person:
- is the licensee
- either alone or together with an associate
- can control the licensee:
- can control the selection or provision of a significant proportion of the programs broadcast by the licensee
- can control a significant proportion of the operations of the company,
- can veto any action taken by the board of directors
- can appoint, secure or veto the appointment of at least half of the board of directors
- can exercise direction or restraint over any substantial issue affecting the management or affairs of the licensee or company.
Similar criteria apply to newspapers, their publishers and persons exercising control of them. More than one person may be in a position to exercise control of a licence, a company or a newspaper. In general, an employee is not regarded as being in a position to exercise control.
What does ‘associate’ mean?
This term has a broad definition and is intended to cover persons who act in concert in relation to a company, licence or newspaper. Persons are not associates if the ACMA is satisfied that they do not act together in any relevant dealings relating to that company, licence or newspaper, and neither of them is in a position to exert influence over the business dealings of the other in relation to that company, licence or newspaper.
ACMA opinions on control
On request, the ACMA is required to provide a written binding opinion about whether a person is in a position to exercise control of a licence, a newspaper or a related company. See ACMA opinions on control.