Broadcasting Amendment Act 1990

No. 102 of 1990

An Act to amend the Broadcasting Act 1942, and for
related purposes

[Assented to 18 December 1990]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title etc.

1. (1) This Act may be cited as the Broadcasting Amendment Act 1990.

(2) In this Act, “Principal Act” means the Broadcasting Act 19421.

Commencement

2. This Act commences on the day on which it receives the Royal Assent.

Interpretation

3. Section 4 of the Principal Act is amended:

(a) by inserting in subsection (1) the following definition:

“ ‘suitability requirements’ has the meaning given by subsections (18) and (19);”;

(b) by adding at the end the following subsections:

“(18) For the purposes of this Act, the holder of a commercial licence fails to meet the suitability requirements that apply to the licence if the licensee:

(a) is no longer a fit and proper person to hold the licence; or

(b) no longer has the financial, technical and management capabilities necessary to provide an adequate and comprehensive service pursuant to the licence.

“(19) For the purposes of this Act, an applicant under section 90j or 92f for approval of a transaction in relation to a licence fails to meet the suitability requirements that apply to the licence if:

(a) the Tribunal is satisfied, for the purposes of subparagraph 90ja (2) (c) (ii) or 92faa (2) (c) (ii), that the applicant:

(i) is not a fit and proper person to hold the interests to which the transaction relates; or

(ii) does not have the financial, technical or management capabilities to provide an adequate and comprehensive service pursuant to the licence; or

(b) had the application been an application for the Tribunal’s consent to the transfer to the applicant of the licence to which the transaction relates, the Tribunal would, for the purposes of sub-subparagraph 89a (8) (c) (i) (a) or (b) (as applied by paragraph 90ja (2) (a) or 92faa (2) (a)), not have been satisfied that the person:

(i) is a fit and proper person to hold the licence; or

(ii) has the financial, technical and management capabilities necessary to provide an adequate and comprehensive service pursuant to the licence.”.

Ordinary inquiries

4. Section 17c of the Principal Act is amended by inserting after subsection (6) the following subsection:

“(6a) Without limiting subsection (6), the reference in paragraph (6) (b) to the exercise of 2 or more powers includes a reference to the exercise of:

(a) the power to grant a supplementary radio licence; and

(b) the power to grant a commercial radio licence that has a service area overlapping the service area proposed for the supplementary radio licence.”.

5. After section 82a of the Principal Act the following section is inserted:

Simultaneous commercial radio licence and supplementary radio licence inquiries

“82aaa. (1) The Minister may:

(a) publish a notice under subsection 82 (1) in relation to a commercial radio licence even though:

(i) an application has been lodged under section 82a for the grant of a supplementary radio licence that would have a service area overlapping the service area proposed for the commercial radio licence; and

(ii) the Minister has not, at the time when the notice is published, determined whether to refer the application to the Tribunal under paragraph 82a (4) (a) or dismiss the application under paragraph 82a (4) (b) or subsection (5); and

(b) publish a notice under subsection 82 (1) in relation to a commercial radio licence even though:

(i) the Minister has, under paragraph 82a (4) (a), referred to the Tribunal an application under section 82a for the grant of a supplementary radio licence that would have a service area overlapping the service area proposed for the commercial radio licence; and

(ii) the Tribunal has not, at the time when the notice is published, determined whether or not to grant a supplementary radio licence pursuant to the reference.

“(2) Where:

(a) an application is lodged under section 82a for the grant of a supplementary radio licence and is referred to the Tribunal under paragraph 82a (4) (a); and

(b) the Minister, in accordance with paragraph (1) (a) or (b) of this section, has published or publishes a notice under subsection 82 (1) in relation to a commercial radio licence that would have a service area overlapping the service area proposed for the supplementary radio licence;

the following provisions have effect:

(c) the Tribunal may consider simultaneously the application for the grant of the supplementary radio licence and applications for the commercial radio licence;

(d) the Tribunal may determine the matters that arise out of the application under section 82a and the applications for the commercial radio licence in the order that the Tribunal thinks most appropriate in the circumstances;

(e) the Tribunal may, in accordance with regulations made for the

purposes of section 17c, hold a joint inquiry into the exercise of the power to grant the supplementary radio licence and the exercise of the power to grant the commercial radio licence.

“(3) Nothing in this section is to be taken to imply:

(a) that a power expressly conferred on the Minister or the Tribunal under this section was not possessed by the Minister or the Tribunal before the commencement of this section; or

(b) that a procedure expressly authorised by this section was not authorised before the commencement of this section.”.

Criteria for grant of supplementary radio licence

6. Section 83b of the Principal Act is amended:

(a) by omitting from paragraph (7) (b) “applications for such a commercial radio licence should be invited” and substituting “such a commercial radio licence should be granted”;

(b) by omitting subsection (8) and substituting the following subsections:

“(8) Where the Tribunal makes a determination under subsection (7), the Tribunal must, as soon as practicable after making the determination, give the applicant and the Minister written notice of the determination and the reasons for the determination.

“(9) If, at the time when the Tribunal makes a determination under subsection (7), the process leading to the grant of the commercial radio licence referred to in that subsection is not already underway, the Tribunal must, as soon as practicable after making the determination, make a written recommendation to the Minister that the Minister invite applications for that commercial licence.

“(10) For the purposes of subsection (9), the process leading to the grant of a commercial radio licence is already underway if a notice has been published under subsection 82 (1) in relation to the licence and:

(a) the Tribunal has not yet determined the applications made in response to the notice; or

(b) the Tribunal has determined those applications but the licence has not yet been granted.”.

Renewal of commercial licence

7. Section 86aa of the Principal Act is amended by inserting after subsection (4) the following subsection:

“(4a) In determining whether it is advisable in the public interest to refuse to renew a commercial licence under paragraph (4) (b), the Tribunal is to have regard to:

(a) the existence of the powers referred to in section 86aaa; and

(b) such other matters as the Tribunal considers relevant.”.

8. After section 86aa of the Principal Act the following section is inserted:

Powers of the Tribunal where licensee fails to meet suitability requirements that apply to a commercial licence

“86aaa. (1) Where the Tribunal is satisfied, for the purposes of paragraph 86aa (4) (b), that the holder of a commercial licence has failed to meet the suitability requirements that apply to the licence, the Tribunal may do any one or more of the following:

(a) revoke, vary or impose conditions on the licence under subsection 85 (1) or 86 (6);

(b) give directions under subsection 92m (1a);

“(2) The powers referred to in subsection (1) are in addition to, and are not intended to limit, any other power that the Tribunal has to deal with the licensee’s failure.”.

Suspension and revocation of commercial licence

9. Section 88 of the Principal Act is amended by inserting after subsection (2) the following subsection:

“(2a) In determining whether it is advisable in the public interest to suspend or revoke a commercial licence under paragraph (2) (b), the Tribunal is to have regard to:

(a) the existence of the powers referred to in section 88aa; and

(b) such other matters as the Tribunal considers relevant.”.

10. After section 88 of the Principal Act the following section is inserted:

Powers of the Tribunal where licensee fails to meet suitability requirements that apply to a commercial licence

“88aa. (1) Where the Tribunal is satisfied, for the purposes of paragraph 88 (2) (b), that the holder of a commercial licence has failed to meet the suitability requirements that apply to the licence, the Tribunal may do any one or more of the following:

(a) revoke, vary or impose conditions on the licence under subsection 85 (1) or 86 (6);

(b) give directions under subsection 92m (1a);

“(2) The powers referred to in subsection (1) are in addition to, and are not intended to limit, any other power that the Tribunal has to deal with the licensee’s failure.”.

Advertising not allowed pursuant to temporary transmission permit

11. Section 89dh of the Principal Act is amended:

(a) by omitting from subsection (1) “subsection (2)” and substituting “subsections (2) and (3)”;

(b) by adding at the end the following subsections:

“(3) Subsection (1) does not apply to a temporary transmission permit granted to a person to whom subsection (4) applies.

“(4) This subsection applies to a person if:

(a) a temporary transmission permit is granted to the person; and

(b) the person is:

(i) the holder of a public licence; or

(ii) an applicant or potential applicant for a public licence; and

(c) the permit is granted for the purposes of conducting broadcasts connected with the public licence or an application or intended application for the public licence.

“(5) Where a temporary transmission permit is granted to a person to whom subsection (4) applies:

(a) subsection 119ab (2) applies to the person; and

(b) subsections 119ab (3), (3a) and (3b) apply to the person subject to any conditions imposed under subsection 89df (9);

as if references in those subsections to a public radio licence were references to the temporary transmission permit.

“(6) It is a condition of a temporary transmission permit granted to a person to whom subsection (4) applies that any money derived by the person from broadcasting activities conducted pursuant to the permit is not to be spent otherwise than:

(a) for or in connection with the conduct of broadcasting activities pursuant to the temporary transmission permit; or

(b) if the person is the holder of a public licence—for or in connection with the provision, maintenance or improvement of the broadcasting services provided pursuant to the licence; or

(c) if the person is an applicant or potential applicant for a public licence—for or in connection with the preparation or making of an application for the licence; or

(d) for the benefit of public broadcasting generally.

“(7) For the purposes of this section:

(a) a person is an applicant for a public licence if:

(i) the Minister has published a notice under subsection 82 (1) inviting applications for the grant of a public licence; and

(ii) the person has applied for the grant of the licence; and

(b) a person is a potential applicant for a public licence if the Minister is satisfied, on reasonable grounds, that:

(i) the person intends to apply for a public licence; or

(ii) the person is a member of a body which intends to form a corporation to apply for the grant of a public licence.”.

Approval of transactions

12. Section 90ja of the Principal Act is amended:

(a) by omitting from paragraph (11) (c) “or such longer period as the Tribunal, on application, allows by notice in writing served on the person within that period of 6 months”;

(b) by inserting after subsection (11) the following subsections:

“(11a) Subject to subsections (11b), (11c) and (11d), the Tribunal may extend the period of 6 months referred to in paragraph (11) (c).

“(11b) If:

(a) the Tribunal refuses to approve a transaction (in whole or in part) in so far as it affects a person because the person has failed to meet the suitability requirements that apply to the licence; and

(b) the person applies for an extension under subsection (11a);

the following provisions have effect:

(d) the Tribunal, in determining whether or not to grant the extension, is to have regard to:

(i) whether the person has made all reasonable efforts to dispose of the interests to which paragraph (11) (c) applies; and

(ii) the effects that granting the extension is likely to have on the licensee’s ability to meet the suitability requirements that apply to the licence; and

(iii) whether granting the extension is likely to have an adverse effect on:

(a) the licensee’s ability to comply with the conditions of the licence; or

(b) the licensee’s operations in providing the service pursuant to the licence; or

(iv) if the person has been given a direction under subsection 92m (1b) in relation to the licence—any failure by the person to comply with the direction; and

(v) any other matters that the Tribunal considers relevant.

“(11c) The Tribunal may only grant an extension under subsection (11a):

(a) on an application for the extension by the person who applied for approval under section 90j; and

(b) within the period of 6 months after the day on which the notice under subsection (2) is served.

“(11d) An extension under subsection (11a) is to be granted by written notice served on the applicant.”.

13. After section 90ja of the Principal Act the following section is inserted in Subdivision B of Division 2 of Part IIIba:

Powers of Tribunal where approval of transaction refused under section 90ja

“90jaa. (1) Where:

(a) the Tribunal refuses to approve a transaction in so far as it affects an applicant (either in whole or in part) under subsection 90ja (2); and

(b) the Tribunal refuses to approve the transaction because the applicant for approval failed to meet the suitability requirements that apply to the licence;

the Tribunal may do any one or more of the following:

(d) give directions under subsection 92m (1b);

(e) give directions under subsection 92n (2b).

“(2) The powers referred to in subsection (1) are in addition to, and are not intended to limit, any other power that the Tribunal has to deal with the applicant’s failure.”.

Approval of transactions

14. Section 92faa of the Principal Act is amended:

(a) by omitting from paragraph (11) (c) “or such longer period as the Tribunal, on application, allows by notice in writing served on the person within that period of 6 months”;

(b) by inserting after subsection (11) the following subsections:

“(11a) Subject to subsections (11b), (11c) and (11d), the Tribunal may extend the period of 6 months referred to in paragraph (11) (c).

“(11b) If:

(b) the person applies for an extension under subsection (11a);

the following provisions have effect:

(d) the Tribunal, in determining whether or not to grant the extension, is to have regard to:

(i) whether the person has made all reasonable efforts to dispose of the interests to which paragraph (11) (c) applies; and

(ii) the effects that granting the extension is likely to have on the licensee’s ability to meet the suitability requirements that apply to the licence; and

(iii) whether granting the extension is likely to have an adverse effect on:

(a) the licensee’s ability to comply with the conditions of the licence; or

(b) the licensee’s operations in providing the service pursuant to the licence; or

(iv) if the person has been given a direction under subsection 92m (1b) in relation to the licence—any failure by the person to comply with the direction; and

(v) any other matters that the Tribunal considers relevant.

“(11c) The Tribunal may only grant an extension under subsection (11a):

(a) on an application for the extension by the person who applied for approval under section 92f; and

(b) within the period of 6 months after the day on which the notice under subsection (2) is served.

“(11d) An extension under subsection (11a) is to be granted by written notice served on the applicant.”.

15. After section 92faa of the Principal Act the following section is inserted in Subdivision B of Division 3 of Part IIIba:

Powers of Tribunal where approval of transaction refused under section 92faa

“92faaa. (1) Where:

(a) the Tribunal refuses to approve a transaction in so far as it affects an applicant (either in whole or in part) under subsection 92faa (2); and

(b) the Tribunal refuses to approve the transaction because the applicant for approval failed to meet the suitability requirements that apply to the licence;

the Tribunal may do any one or more of the following:

(d) give directions under subsection 92m (1b);

(e) give directions under subsection 92n (2b).

“(2) The powers referred to in subsection (1) are in addition to, and are not intended to limit, any other power that the Tribunal has to deal with the applicant’s failure.”.

Directions to enforce ownership and control or licensing provisions or to protect licensee

16. Section 92m of the Principal Act is amended by inserting after subsection (1) the following subsections:

“(1a) Where section 86aaa or 88aa applies to a licence, the Tribunal may give a person directions for the purposes of:

(a) enabling or requiring the licensee to meet the suitability requirements that apply to the licence; or

(b) preventing the person from doing an act or thing that is likely to have an adverse effect on:

(i) the licensee’s ability to comply with the conditions of the licence; or

(ii) the licensee’s operations in providing the service pursuant to the licence; or

(iii) the selection or provision of programs to be broadcast pursuant to the licence.

“(1b) Where section 90jaa or 92faaa applies to a licence, the Tribunal may give a person directions for the purpose of preventing the person from doing an act or thing that is likely to have an adverse effect on:

(a) the licensee’s ability to comply with the conditions of the licence; or

(b) the licensee’s operations in providing the service pursuant to the licence; or

“(1c) Without limiting subsection (1a) or (1b), directions under that subsection may be given to:

(a) the licensee or the applicant under section 90j or 92f; or

(b) a person who is in a position to exercise control of the licence; or

(c) a person whose conduct, character or capacity gives rise to, or contributes to, the licensee’s or the applicant’s failure to meet the suitability requirements that apply to the licence; or

(d) a servant or agent of a person referred to in paragraph (a), (b) or (c); or

(e) where a person referred to in paragraph (a), (b), (c) or (d) is a company—a director of the company.

“(1d) A direction under subsection (1a) or (1b) must be in writing and must be served on the person to whom it is given.

“(1e) A reference in subsection (1a) or (1b) to preventing a person from doing an act or thing includes a reference to preventing a servant or agent of the person from doing that act or thing.”.

Directions for divestiture

17. Section 92n of the Principal Act is amended by inserting after subsection (2) the following subsections:

“(2a) Where:

(a) section 86aaa or 88aa applies to a licence; and

(b) the Tribunal is satisfied that the holding by a person of particular interests in a company gives rise to, or contributes to, the licensee’s failure to meet the suitability requirements that apply to the licence;

the Tribunal:

(c) may give such directions as it thinks necessary to ensure that the person ceases, before the end of the period of 6 months commencing on the day on which the direction is given, to hold specified interests in the company to enable or require the licensee to meet the suitability requirements that apply to the licence; and

(d) may give such directions as it thinks necessary to prohibit the person from disposing of the person’s interests in that company, or any interests derived from or related to those interests, to a specified person or persons included in a specified class of persons.

“(2b) Subject to subsections (2c), (2d), (2e) and (2f) the Tribunal may extend the period of 6 months referred to in paragraph (2a) (c).

“(2c) An extension granted to the person under subsection (2b) is not to be for a period longer than 6 months.

“(2d) The Tribunal, in determining whether or not to grant an extension under subsection (2b), is to have regard to:

(a) whether the person has made all reasonable efforts to dispose of the interests to which paragraph (2a) (c) applies; and

(b) the effects that granting the extension is likely to have on the licensee’s ability to meet the suitability requirements that apply to the licence; and

(i) the licensee’s ability to comply with the conditions of the licence; or

(ii) the licensee’s operations in providing the service pursuant to the licence; or

(iii) the selection or provision of programs broadcast pursuant to the licence; and

(d) if the person has been given a direction under subsection 92m (1a) in relation to the licence—any failure by the person to comply with the direction; and

(e) any other matters that the Tribunal considers relevant.

“(2e) The Tribunal may only grant an extension under subsection (2b):

(a) on the application of the person to whom the direction under subsection (2a) is given; and

(b) within the period of 6 months commencing on the day on which the direction is given.

“(2f) An extension under subsection (2b) is to be granted by written notice served on the applicant.

“(2g) Where:

(a) section 90jaa or 92faaa applies to a licence; and

(b) a person has interests referred to in paragraph 90ja (11) (c) or 92faa (11) (c);

the Tribunal may give such directions as it thinks necessary to prohibit the person from disposing of those interests, or any interests derived

from or related to those interests, to a specified person or persons included in a specified class of persons.”.

Special provisions relating to public licences

18. Section 119ab of the Principal Act is amended:

(a) by inserting in paragraph (3) (a) “or community promotional material” after “community information”;

(b) by inserting in subsection (3a) “, or material is community promotional material,” after “community information”;

Minor and consequential amendments

19. The Principal Act is amended as set out in the Schedule.

Application of amendments

20. The amendments made by sections 3, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17 and 19 and the Schedule apply to a failure by the licensee, or by an applicant under section 90j or 92f, to meet the suitability requirements that apply to a licence where:

(a) the Tribunal has, before the commencement of this section, found that the failure has occurred; or

(b) the Tribunal finds, after the commencement of this section, that the failure has occurred (whether the facts or circumstances on which the Tribunal makes that finding occurred before or after the commencement of this section).

Amendment of Broadcasting and Television Act 1942 as in force immediately before 1 January 1986 for the purposes of its continued application to old system licences

21. For the purposes of the continued application, by virtue of section 98 of the Broadcasting and Television Amendment Act 1985 of the Broadcasting and Television Act 1942 as in force immediately before 1 January 1986, the Broadcasting and Television Act 1942 as in force immediately before 1 January 1986, is amended:

(a) by inserting in paragraph 111ba (3) (a) “or community promotional material” after “community information”;

(b) by inserting in subsection 111ba (3a) “, or material is community promotional material,” after “community information”;

SCHEDULE Section 19

MINOR AND CONSEQUENTIAL AMENDMENTS

Paragraph 17a (2) (j):

After “92n (1)”, insert “, (2a) or (2b)”.

Subsection 90ja (2):

Insert “, by notice in writing served on the applicant” after “then, subject to this section, the Tribunal”.

Subsection 92faa (2):

Insert “, by notice in writing served on the applicant” after “then, subject to this section, the Tribunal”.

Heading to Division 4 of Part IIIba:

Omit the heading, substitute the following heading:

“Division 4—Enforcement of ownership and control and licensing
provisions in relation to commercial licences”.

Subsection 92m (2):

After “subsection (1)”, insert “, (1a) or (1b)”.

Subsection 92n (3):

After “paragraph (1) (a)”, insert “or (2a) (C)”.

Subsection 92n (4):

After “paragraph (1) (b)”, insert “or (2a) (d) or subsection (2b)”.

After paragraph 119a (1) (gaa):

Insert the following paragraphs:

“(gaaa) a direction by the Tribunal under subsection 92m (1a) where the direction is given for the purposes, or for purposes that include the purposes, of enabling or requiring the licensee concerned to meet the suitability requirements that apply to the licence concerned;

(gaab) a direction by the Tribunal under subsection 92n (2a) or (2b);”.

NOTE

1. No. 33, 1942, as amended. For previous amendments, see No. 39, 1946; No. 64, 1948; No. 80, 1950; No. 41, 1951; No. 12, 1953; No. 82, 1954; Nos. 33, 65 and 92, 1956; No. 36, 1960 (as amended by No. 32, 1961); No. 96, 1962; No. 82, 1963; Nos. 67 and 121, 1964; Nos. 38 and 120, 1965; No. 57, 1966; No. 47, 1967; No. 69, 1968; Nos. 21 and 31, 1969; Nos. 8, 72 and 136, 1971; No. 49, 1972; No. 50, 1973; No. 216, 1973 (as amended by No. 20, 1974); No. 55,

NOTE—continued

1974; No. 56, 1975; Nos. 89, 157 and 187, 1976; No. 160, 1977; Nos. 36, 52 and 210, 1978; Nos. 143 and 177, 1980; Nos. 61, 113 and 153, 1981; No. 154, 1982; Nos. 7, 37, 39, 91 and 136, 1983; Nos. 10, 63, 72, 163 and 165, 1984; Nos. 66 and 191, 1985; Nos. 2 and 76, 1986; Nos. 68, 79, 80, 134 and 184, 1987; Nos. 56, 99, 109, 146 and 147, 1988; and Nos. 29, 31 and 63, 1989.

[Minister’s second reading speech made in—

House of Representatives on 1 June 1990

Senate on 15 October 1990]