House of Representatives

Explanatory Memorandum

Circulated By the Authority of the Attorney-General, the Hon Robert Mcclelland Mp

Schedule 3 - Broadband, Communications and the Digital Economy amendments

218 This Schedule contains amendments to the following Acts within the Broadband, Communications and the Digital Economy portfolio to remove differential treatment of same-sex couples and their children:

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Australian Postal Corporations Act 1989

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Broadcasting Services Act 1992 , and

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Telstra Corporation Act 1991 .

Australian Postal Corporation Act 1989

219 The Australian Postal Corporations Act 1989 (the APC Act) establishes Australia Post and regulates a range of matters, including its operations, arrangements relating to its directors and dealings with postal articles and their contents.

Item 1

220 Section 90K of the APC Act sets out the circumstances that must exist to allow current employees of Australia Post to use or disclose information or a document if it is not specially protected. This item inserts a note at the end of subsection 90K(2) of the APC Act that refers the reader to the meaning of 'next of kin' that will be inserted by Item 2 into subsection 90K(6) for the purposes of determining to whom information or documents can be disclosed in specific circumstances.

Item 2

221 This item inserts new subsection 90K(6) and (7) to provide that certain relationships should be taken into account in determining whether a person is 'next of kin' of another person for the purposes of subsection 90K(2).

222 Subsection 90K(6) extends the relationships that can be recognised as 'next of kin'. Persons who must be taken into account in determining the next of kin include:

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the de facto partner of the person (within the meaning of the Acts Interpretation Act)

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someone who is the child of the person, or of whom the person is a child, because of new subsection (7), and

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anyone else who would be a relative of the person because someone mentioned in paragraph (a) or (b) is taken into account.

223 A description of the key definition of 'de facto partner' used in new subsection 90K(6)(a) and of the tracing rule used in paragraph 90K(6)(c) can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

224 This item also inserts the key definition of 'child' into subsection 90K(7) of the APC Act. This will extend the range of persons who can be considered a child of a person under the APC Act to include a child who is a product of a relationship a person has or had as a couple with another person, for the purposes of establishing who is a person's next of kin. A description of the key definition of a 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Broadcasting Services Act 1992

225 The Broadcasting Services Act 1992 sets out different categories of broadcasting services, datacasting services and online services, and the regulatory framework under which they must operate.

Item 3

This item repeals the phrase 'including a de facto spouse' in the definition of 'associate' in subsection 6(1) Broadcasting Services Act as a consequence of the insertion of a definition of 'spouse' into subsection 6(1) by Item 8.. The definition of 'associate' defines who is an 'associate' in relation to a person's control of a licence or a newspaper, or control of a company in relation to a licence or a newspaper for the purposes of the Broadcasting Services Act. This is particularly relevant for the purposes of Schedule 1 of the Broadcasting Services Act which deals with control and ownership of company interests. The effect is to expand the class of people that will be considered an associate under the Broadcasting Services Act to include a person's same-sex partner.

Item 4

226 This item replaces the word 'Note' at the end of the definition of associate in subsection 6(1) with 'Note 1' as a consequence of the amendment in Item 5 of this Schedule, which introduces Note 2.

Item 5

227 This item inserts a new note at the end of the definition of 'associate' in subsection 6(1) to refer the reader's attention to the new subsection 6(3) inserted by Item 9 of this Schedule. This will assist in establishing who is an associate by reference to the tracing rule inserted by Item 9 of this Schedule.

Item 6

228 This item inserts the key definition of 'child' into subsection 6(1) of the Broadcasting Services Act. This will extend the range of persons who can be considered a child of a person under the Broadcasting Act to include a child who is a product of a relationship a person has or had as a couple with another person, for the purposes of the Broadcasting Services Act. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 7

229 This item inserts the key definition of 'parent' into subsection 6(1) of the Broadcasting Services Act. This definition ensures that both members of a couple are recognised as parents of the child where that child is the product of the relationship. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 8

230 This item inserts a definition of 'spouse' into subsection 6(1) of the Act. The definition provides that a 'spouse' includes someone who is a de facto partner within the meaning of the Acts Interpretation Act. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 9

231 This item subsection 6(3) which is a tracing rule that will allow the determination of who is an associate of a person to be traced through the definitions of 'child' to be inserted by Item 6 of this Schedule. A description of 'child' and the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 10

232 This item inserts a transitional provision. Schedule 1 to the Broadcasting Services Act sets out principles for identifying control and ownership of company interests. The principles provide a means of ascertaining who is in a position to exercise control of certain licences, newspapers and companies.

233 The concept of control of media interests is relevant to a number of provisions within the Broadcasting Services Act. Most of these provisions are contained in Part 5, which regulates control of commercial broadcasting licences and datacasting transmitter licences. By way of example, Division 5A of Part 5 of the Broadcasting Services Act sets out media diversity rules which require the maintenance of minimum numbers of independent media groups.

234 The expanded definition of 'associate' proposed by this Schedule of the Bill may alter the application of the various control and ownership rules in the Broadcasting Services Act. By expanding the circumstances in which a person will be an 'associate' of another person, the proposed amendment will expand the range of parties to whom the control and ownership rules may apply. Potentially this could result in persons having what is considered under the Broadcasting Services Act to be unacceptable control over certain types of companies as a result of the amendments proposed in this Schedule.

235 In order to provide an adequate period for affected parties to consider the expanded definition of 'associate', and to reduce the risk of inadvertent breaches of the Broadcasting Services Act, a six month moratorium is imposed. The duration of the moratorium is consistent with transitional arrangements being imposed for other Commonwealth Acts and is considered an appropriate period of time to enable affected parties to implement measures to ensure compliance with the Broadcasting Services Act as amended.

Telstra Corporation Act 1991

236 The Telstra Corporation Act 1991 regulates a range of matters relating to the operations of Telstra Corporation Limited, its ownership (including the imposition of restrictions on foreign ownership), certain employee entitlements, and transitional arrangements stemming from the sale of the Commonwealth's equity interest in Telstra.

Item 11

237 This item inserts into clause 2 of the Schedule to the Telstra Corporation Act a '(1)' before the words 'In Part 2A' which creates a new subclause (1) at clause 2 of Schedule 2 as a consequence of the insertion of subclause (2) by Item 17 of this Schedule. The object of the Schedule is to define terms used in Part 2A of the Telstra Corporation Act (which deals with ownership restrictions).

Item 12

238 This item inserts the key definition of 'child' into new subclause 2(1) of the Schedule to the Telstra Corporation Act. This will extend the range of persons who can be considered a child of a person under the Telstra Corporation Act to include a child who is a product of a relationship a person has or had as a couple with another person, for the purposes of the Broadcasting Services Act.. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 13

239 This item inserts the key definition of 'parent' into new subclause 2(1) of the Schedule to the Telstra Corporation Act to extend the range of persons under Part 2A of the Telstra Corporation Act who can be considered the parent of a person to include the parent of a child within the meaning of the definition inserted by Item 12. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 14

240 This item repeals paragraph (b) of the definition of 'relative' in clause 2 of the Schedule to the Telstra Corporation Act which refers to 'non-marital domestic relationships', and substitutes into new subclause 2(1) of the Schedule to the Telstra Corporation Act a paragraph referring to a 'de facto partner', within the meaning of the Acts Interpretation Act. A description of the key definition of 'de facto partner' can be found in the Key Definition and Concepts section of this Explanatory Memorandum.

Item 15

241 This item repeals the term 'son, daughter' from paragraph (d) of the definition of 'relative' in Clause 2 of the Schedule to the Telstra Corporation Act and substitutes the term 'child'. This amendment makes it clear that the provision applies to children of a person because of the definition of 'child' in new subclause 2(1) of the Schedule being inserted by Item 12. A description of the key definition of 'child' can be found in the Key Concepts and Definition Section of this Explanatory Memorandum.

Item 16

242 This item adds a note at the end of the definition of 'relative' in Clause 2 of the Schedule to the Telstra Corporation Act to signpost that the scope of family relationships referred to in the definition may be affected by the tracing rule in new subclause 2(2) being inserted by Item 17 of this Schedule.

Item 17

243 This item inserts new subclause (2) at the end of clause 2 of the Schedule to the Telstra Corporation Act. This subclause extends the definition of 'relative' in new subclause 2(1) by using the tracing rule to expand the meaning of the classes of relationship referred to in that definition. Subclause 2(2) provides that if a child is the child of another person because of the definition of 'child' in clause 2 (inserted by Item 12 of this Schedule), relationships traced to or through the person are to be determined on the basis that the person is the child of the other person. The effects of expanding the definition of a person's 'relative' are described at Item 18 of this Schedule. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 18

244 This item inserts a transitional provision to deal with the expanded definition. Division 4 of Part 2A of the Telstra Corporation Act imposes limits on foreign ownership of Telstra Corporation Limited. Section 8BI of the Telstra Corporation Act provides that Telstra must take all reasonable steps to ensure that an 'unacceptable foreign ownership situation' does not arise. For the purposes of the foreign ownership rules, the effect of expanding the definition of 'relative' in the Telstra Corporations Act, as proposed under this Schedule, to include same-sex partners and their children, is that in determining the stake a foreign person has in Telstra, it will include (where applicable) any stake in Telstra held by that person's same-sex partner and any children. In order to ensure that Telstra is not inadvertently in breach of section 8BI because of the change, a six month moratorium is imposed in respect of any contravention of section 8BI. The duration of the moratorium, being six months, is consistent with other transitional arrangements being imposed for other Commonwealth Acts and is considered an appropriate period of time to enable the entity to implement reasonable measures to ensure compliance with section 8BI after expiration of the moratorium period.

245 The broadening of the people considered to be associates could result in shareholders being in an 'unacceptable foreign ownership' position under Part 2A of the Telstra Corporation Act once the amendments apply in this Schedule apply. Shareholders in this position will invoke criminal sanctions under Part 2A of the Telstra Corporation Act and will also be able to take advantage of this moratorium to organise their financial affairs.