ACMA release: The Australian Communications and Media Authority has consented to the withdrawal of enforceable undertakings given by Macquarie Media Holdings Ltd (MMH) and related Macquarie companies under section 205W of the Broadcasting Services Act 1992 (the BSA).

The Macquarie companies sought ACMA’s consent to withdraw the undertakings following a decision on 12 January 2009 by the Full Federal Court in the appeal by MMH and others against the decision of Justice Moore of 14 November 2008.

Justice Moore had found in favour of ACMA’s approach to the interpretation of section 73A of the BSA in respect of the control by MMH and other Macquarie entities of television licences in Darwin and Tasmania. However, the Full Court allowed the appeal, favouring the appellants’ construction of section 73A.

Under the undertakings, MMH and the other Macquarie companies had been required to divest interests in the digital commercial television licences in Tasmania and Darwin by 19 January 2009 so that they were no longer in a position to exercise control of two licences in each of those licence areas.

ACMA is currently reviewing the Federal Court decision before deciding whether to seek special leave to appeal to the High Court.

Media contact: Christine Donnelly, ACMA Acting Media Manager on 02 9334 7980.


Prior approval under the BSA - breaches of the statutory control rules
The statutory control rules are set out in Part 5 of the BSA. A person may have committed an offence if they are in breach of these rules.

Before a transaction takes place or an agreement is entered into that would place a person in breach of the statutory control rules, the person may apply to ACMA under section 67 of the BSA for approval of the breach. Certain preconditions must be satisfied in order for prior approval to be granted by ACMA.

If the preconditions are satisfied, ACMA may approve the breach and specify a period during which the person must take action to ensure the breach ceases. This period cannot be more than two years.

Macquarie’s interests in the Tasmania and Darwin licence areas
Prior to its acquisition of Southern Cross Broadcasting (Australia) Limited, ACMA gave certain Macquarie entities and their directors prior approval under section 67 of the BSA for temporary breaches of the control provisions in that Act. Certain Macquarie companies gave undertakings to ACMA under section 205W in order to satisfy one of the preconditions for approval to be given. The approvals relate to the control of two commercial television broadcasting licences in each of the Tasmania and Darwin Licence areas.