Statutory Rules 1986 No. 1001
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Australian Broadcasting Tribunal (Inquiries) Regulations
I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Broadcasting Act 1942.
Dated 15 May 1986.
N. M. STEPHEN
Governor-General
By His Excellency’s Command,
M. J. DUFFY
Minister of State for Communications
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Citation
1. These Regulations may be cited as the Australian Broadcasting Tribunal (Inquiries) Regulations.
Interpretation
2. In these Regulations, unless the contrary intention appears—
“application” means an application under the Act requesting the Tribunal to exercise any of its substantive powers or an application under sub-section 126 (1) of the Act;
“approved form” means a form in writing approved by the Tribunal;
“inquiry” means an inquiry under sub-section 17c (1) of the Act;
“inquiry document” means an application, a submission and any other document in relation to an application or in connection with an inquiry;
“party”, in relation to an inquiry, means a person who is, by virtue of sub-section 22aa (1) of the Act, a party to proceedings before the Tribunal at the inquiry;
“prescribed particulars”, in relation to an unincorporated association, means particulars of—
(a) the objects of the association; and
(b) the name of each member of the association or, where there are more than 20 members of the association, the name of each officer of the association;
“proceedings” means proceedings (whether oral or otherwise) before the Tribunal at an inquiry;
“public document” means a published document that is available to the public;
“substantive power” means a power of the Tribunal specified in subsection 17a (2) of the Act;
“the Act” means the Broadcasting Act 1942.
Powers of Tribunal in relation to inquiries
3. (1) The powers of the Tribunal, in relation to an inquiry, include the following powers:
(a) to direct that inquiries into the exercise of 2 or more substantive powers by the Tribunal be held jointly;
(b) to direct that inquiries into different aspects of the exercise of the same substantive power by the Tribunal be held separately;
(c) to direct that an inquiry into the exercise of a substantive power by the Tribunal be held into certain aspects only of the exercise of that power;
(d) to direct that the inquiry be suspended for a period determined by the Tribunal;
(e) to direct that the inquiry be deferred until a day determined by the Tribunal.
(2) The Tribunal may, in the exercise of its powers in relation to an inquiry—
(a) identify the issues to be considered in proceedings or in any part of proceedings;
(b) give directions for the purpose of ensuring that the issues to be considered in an oral stage of proceedings (if any), and the information relevant to those issues, are put in a document or documents before that stage of the proceedings;
(c) direct a party to the inquiry to lodge specified documents relating to the inquiry with the Tribunal on or before a specified day;
(d) direct a party to the inquiry to serve specified inquiry documents on another party to the inquiry or on a licensee notified under sub-regulation 7 (1) in relation to the inquiry;
(e) permit a party, at any time before the conclusion of the inquiry, to—
(i) lodge further inquiry documents with the Tribunal; or
(ii) amend or withdraw an inquiry document lodged by that party with the Tribunal;
(f) grant an extension of the period provided under the Act or these Regulations for the lodgment of an inquiry document, whether or not that period has expired;
(g) determine what summonses (if any) should be issued requiring the production of documents for the purposes of proceedings; and
(h) determine timetables in relation to further proceedings.
(3) Nothing in sub-regulation (1) or (2) shall be taken to limit the powers of the Tribunal in relation to an inquiry to the powers specified in those sub-regulations.
(4) In the exercise of its powers under these Regulations, the Tribunal shall ensure that an inquiry is heard justly and expeditiously.
Applications
4. (1) An application shall—
(a) subject to sub-regulation (3), be in accordance with the appropriate approved form;
(b) indicate the power of the Tribunal in respect of which the application is made;
(c) outline the grounds on which the exercise by the Tribunal of that power is sought and such other information (if any) as is required by the form;
(d) be signed or otherwise executed as required by the form; and
(e) be lodged with the Tribunal, together with copies of such other documents (if any) as are relied on by the applicant in support of the application.
(2) An application made by a person on behalf of an unincorporated association shall, in addition to complying with sub-regulation (1), contain a statement setting out the prescribed particulars in relation to the association.
(3) A person may, with the consent of the Tribunal and subject to such conditions (if any) as the Tribunal specifies, make an application in a form other than the appropriate approved form.
(4) Strict compliance with this regulation is not necessary and substantial compliance is sufficient.
Refusal of certain applications
5. (1) The Tribunal may refuse to receive an application that—
(a) does not comply substantially with the requirements of these Regulations in relation to applications;
(b) does not contain sufficient information to enable the Tribunal to commence an inquiry; or
(c) is scandalous, vexatious, frivolous or an abuse of the procedures of the Tribunal.
(2) Where the Tribunal refuses to receive an application by a person, the Tribunal shall, as soon as practicable but within 28 days after the date of the refusal, give that person notice in writing of the refusal and a concise statement of the reasons for the refusal.
Inquiry file
6. (1) Where the Tribunal receives an application requesting the exercise of any of its substantive powers, the Tribunal shall commence an inquiry into the requested exercise of that power by creating an inquiry file and shall, subject to sub-regulations (6) and (7), place on that file copies of the application and any other document lodged with the application.
(2) Where the Tribunal proposes to exercise any of its substantive powers otherwise than on an application, the Tribunal shall commence an inquiry into the proposed exercise of that power by creating an inquiry file and shall, subject to sub-regulations (6) and (7), place on that file a notice of the commencement of the inquiry and copies of all documents that the Tribunal intends to take into account for the purposes of the inquiry.
(3) A notice under sub-regulation (2) shall specify the particulars that are required by paragraphs 9 (3) (b), (c) and (d) to be specified in a notice published under sub-regulation 9 (1) in relation to the inquiry.
(4) Subject to sub-regulations (6) and (7), the Tribunal shall, so far as practicable, place on each inquiry file a copy of each inquiry document relating to the inquiry to which the file relates, including—
(a) each submission or other document lodged in relation to the inquiry;
(b) any legal advice or opinion obtained by the Tribunal that the Tribunal intends to take into account in proceedings in the inquiry;
(c) a record of each decision made by the Tribunal in the inquiry and a concise statement of the reasons for that decision;
(d) the transcript (if any) of proceedings in the inquiry;
(e) a record of each notice or direction given by the Tribunal, or of any document issued by the Tribunal, in the course of the inquiry; and
(f) a record of the results of each investigation carried out by or on behalf of the Tribunal in relation to matters relevant to the inquiry, being results that the Tribunal intends to take into account in proceedings in the inquiry.
(5) Nothing in sub-regulation (4) shall be taken to require the Tribunal to place on an inquiry file a document containing legal advice or opinion
given by a member of the staff of the Tribunal in relation to a matter other than the interpretation of the Act or these Regulations.
(6) Where the Tribunal intends to take into account for the purposes of an inquiry matters contained in a public document, the Tribunal may place on the inquiry file, instead of a copy of the document, a notice that—
(a) indicates that the Tribunal so intends to take those matters into account;
(b) specifies the document;
(c) outlines those matters; and
(d) specifies one or more of the places at which the document is available to the public.
(7) The Tribunal shall ensure that there is not placed on an inquiry file a copy of—
(a) any matter that is the subject of a direction by the Tribunal under sub-section 19 (2) of the Act; or
(b) a submission that is the subject of a direction by the Tribunal under sub-regulation 10 (5).
(8) The Tribunal shall make each inquiry file, or a copy of the file, available for public inspection, at the times determined by the Tribunal, at—
(a) the central office of the Tribunal; and
(b) such other places (if any) as are determined by the Tribunal.
(9) Where the Tribunal holds an inquiry into the grant or renewal of a licence, the Tribunal shall take all reasonable steps to ensure that a copy of the inquiry file relating to the inquiry is made available for public inspection at a place within the service area of the relevant broadcasting service or proposed broadcasting service.
Notice to licensees and applicants
7. (1) Subject to sub-regulation (3), where an inquiry relates to a matter that affects a licensee, the Tribunal shall—
(a) if the licensee is not a party to the inquiry—notify the licensee in writing of the inquiry; and
(b) whether or not the licensee is a party to the inquiry—notify the licensee in writing of each relevant submission lodged with the Tribunal by another person in relation to the inquiry.
(2) Subject to sub-regulation (3), the Tribunal shall, so far as practicable, ensure that each licensee notified under sub-regulation (1) in relation to an inquiry receives a copy of each relevant submission referred to in paragraph (1) (b) relating to that inquiry.
(3) Where an inquiry relates to a matter that affects 2 or more licensees who are members of the same prescribed organisation—
(a) the requirements of sub-regulation (1) shall be taken to be satisfied in relation to each of those licensees if the prescribed organisation is notified in writing of the inquiry and of each relevant submission lodged with the Tribunal in relation to the inquiry; and
(b) the requirements of sub-regulation (2) shall be taken to be satisfied in relation to each of those licensees if the Tribunal ensures that the organisation receives a copy of each relevant submission lodged with the Tribunal in relation to the inquiry.
(4) Where the Tribunal holds an inquiry in consequence of the lodgment of an application, the Tribunal shall—
(a) notify the applicant in writing of each relevant submission lodged with the Tribunal in relation to the inquiry by another party; and
(b) so far as practicable, ensure that the applicant receives a copy of each relevant submission referred to in paragraph (a).
(5) In this regulation—
“prescribed organisation” means one of the following organisations:
(a) the Federation of Australian Commercial Television Stations;
(b) the Federation of Australian Radio Broadcasters;
(c) the Public Broadcasting Association of Australia;
“relevant submission” does not include a submission that the Tribunal refuses, under sub-regulation 10 (5), to take into account in an inquiry.
Disposal of certain matters
8. (1) Where—
(a) the Tribunal has received an application requesting the exercise of any of its substantive powers, other than the power—
(i) to grant a licence; or
(ii) to renew a licence, other than a re-broadcasting licence or a re-transmission licence; and
(b) at any time after commencing the inquiry into the requested exercise of that power, the Tribunal is satisfied, having regard to the application and any document lodged with the application, that it is not necessary to make any further investigation into any matter relevant to the inquiry,
the Tribunal may, in its discretion, terminate the inquiry.
(2) Where the Tribunal makes a decision under sub-regulation (1) terminating an inquiry, the Tribunal shall, as soon as practicable but within 28 days after: the date of the decision—
(a) give notice in writing of the decision and the reasons for the decision to the applicant and any person or organisation notified under regulation 7 in relation to the inquiry; and
(b) publish a notice containing particulars of the decision and the places where and times when copies of the relevant inquiry file may be inspected by members of the public.
Public notice of inquiry
9. (1) Where the Tribunal commences an inquiry, whether in consequence of the lodgment of an application or otherwise, the Tribunal shall, subject to regulation 8 and any direction by the Tribunal under sub-section 19 (2) of the Act, publish a notice in accordance with sub-regulation (3) of the commencement of the inquiry.
(2) A notice under sub-regulation (1) of the commencement of an inquiry shall be published—
(a) where the inquiry relates to the grant of a licence (other than a supplementary licence) otherwise than by way of renewal within 28 days after the specified date referred to in sub-paragraph 82 (1) (b) (i) of the Act in relation to applications for the grant of that licence; or
(b) in any other case—as soon as practicable but within 28 days after the commencement of the inquiry.
(3) A notice under sub-regulation (1) of the commencement of an inquiry shall—
(a) if the inquiry is held in consequence of the lodgment of an application—set out relevant particulars of the application;
(b) specify the issues to be considered in the inquiry;
(c) specify the places where and times when copies of the inquiry file relating to the inquiry may be inspected by members of the public; and
(d) specify the day on or before which interested persons may make submissions to the Tribunal in relation to the inquiry, being a day not earlier than 42 days after the day on which the notice is published in the Gazette.
Submissions
10. (1) A submission made by a person in relation to an inquiry shall—
(a) be in writing or, with the consent of the Tribunal and subject to such conditions (if any) as the Tribunal specifies, in an audio tape, a video tape or a document in any other form;
(b) indicate the nature of any decision, recommendation or direction that the person requests be made or given by the Tribunal in the inquiry;
(c) outline any matters relied on in support of the submission; and
(d) be lodged with the Tribunal on or before the day specified in the notice published under sub-regulation 9 (1) in relation to the inquiry, together with copies of such documents (if any) as are relied on by the person in support of the submission.
(2) A submission made by a person on behalf of an unincorporated association shall, in addition to complying with the other provisions of this regulation, contain a statement setting out the prescribed particulars in relation to the association.
(3) A submission that is in writing shall be signed or otherwise executed by the person making it.
(4) A submission that is not in writing shall be accompanied by, or have affixed to it, a statement in writing that—
(a) indicates the inquiry to which the submission relates;
(b) identifies the person by or on whose behalf the submission is made; and
(c) outlines the matters dealt with in the submission.
(5) Where the Tribunal is of the opinion that a submission lodged in relation to an inquiry—
(a) does not comply with the requirements of these Regulations in relation to submissions;
(b) does not contain matter relevant to the inquiry; or
(c) is scandalous, vexatious, frivolous or an abuse of the procedures of the Tribunal,
the Tribunal may refuse to take the submission into account in the inquiry and may, if it thinks fit, direct that the submission be not made available for public, inspection.
Public documents in support of applications or submissions
11. A person who relies on matters contained in a public document in support of an application or submission by the person to the Tribunal may, notwithstanding paragraph 4 (1) (e) or 10 (1) (d), as the case may be, lodge with the Tribunal, instead of a copy of the document, a notice in writing that—
(a) indicates that the person so intends to rely on those matters;
(b) specifies the document;
(c) outlines those matters; and
(d) specifies one or more of the places at which the document is available to the public.
New issues to be considered
12. (1) Where the Tribunal is satisfied that the issues to be considered in an inquiry, as stated in the notice published under sub-regulation 9 (1) in relation to the inquiry, should be changed, the Tribunal shall determine new issues to be considered in the inquiry.
(2) Where the Tribunal determines new issues to be considered in an inquiry, being issues that are substantially different to the issues stated in the notice published under sub-regulation 9 (1) in relation to the inquiry,
the Tribunal shall, subject to any direction by the Tribunal under subsection 19 (2) of the Act, as soon as practicable—
(a) give notice in writing to the parties to the inquiry of the new issues to be considered; and
(b) publish a notice setting out those new issues and specifying the day on or before which interested persons may make submissions to the Tribunal in relation to the inquiry, having regard to those new issues.
Conferences
13. (1) The Tribunal may, if it considers it necessary or desirable to do so for the purpose of expediting an inquiry, direct the parties, or such of the parties as the Tribunal determines, to attend a conference with a member of the Tribunal.
(2) Without limiting the generality of sub-regulation (1), the Tribunal may direct the parties, or such of the parties as the Tribunal determines, to attend a conference with a member of the Tribunal—
(a) to discuss matters relevant to the inquiry;
(b) to clarify matters contained in an inquiry document lodged with the Tribunal; or
(c) to resolve, so far as practicable, any differences between the parties on matters relevant to the inquiry.
Hearings
14. (1) If the Tribunal considers it necessary or desirable to conduct any part of the proceedings in an inquiry orally, it may hold a hearing in relation to that part of the proceedings.
(2) Without limiting the generality of sub-regulation (1), the Tribunal may hold a hearing in relation to a part of the proceedings where the Tribunal considers it necessary or desirable that—
(a) a person appear before the Tribunal to give evidence in relation to the inquiry; or
(b) the Tribunal hear argument by the parties in relation to the inquiry.
Record of proceedings
15. A person may make a record of proceedings held in public before the Tribunal in any manner that does not, in the view of the Tribunal, disrupt the proper conduct of those proceedings.
Termination of inquiry
16. Where in an inquiry the Tribunal is satisfied, having regard to—
(a) the application (if any) made in accordance with regulation 4 in relation to the inquiry;
(b) the submissions (if any) made in accordance with regulation 10 in relation to the inquiry; and
(c) the Tribunal’s investigation into the matters relevant to the inquiry,
that it is not necessary to take any further step in the inquiry, the Tribunal may, in its discretion, terminate the inquiry.
Delegation
17. (1) The Tribunal may, either generally or as otherwise provided by the instrument of delegation, by writing under its common seal, delegate to any member of the Tribunal all or any of its powers—
(a) specified in paragraphs 3 (2) (c), (d), (e), (f) and (g), sub-regulations 4 (3) and 5 (1) and (2) and paragraphs 10 (1) (a) and 18 (1) (d); and
(b) under sub-regulation 6 (8) to determine the times and places at which an inquiry file, or a copy of the file, is to be made available for public inspection.
(2) A power so delegated, when exercised by the delegate, shall, for the purposes of these Regulations, be deemed to have been exercised by the Tribunal.
(3) A delegation of a power under this regulation does not prevent the exercise of that power by the Tribunal.
Publication of notices, &c.
18. (1) Where under these Regulations the Tribunal is required to publish a notice, the notice shall be published—
(a) in the Gazette;
(b) in any official publication published by or on behalf of the Tribunal;
(c) in the case of a prescribed notice—in at least one newspaper; and
(d) by such other means (if any) as the Tribunal determines.
(2) Where the subject-matter of an inquiry relates to a particular area or place, the Tribunal shall take all reasonable steps to ensure that any notice that is required to be published in relation to that inquiry is published in at least one newspaper circulating in that area or place.
(3) In paragraph (1) (c), “prescribed notice” means a notice that relates to an inquiry into—
(a) the exercise by the Tribunal of any of the following substantive powers:
(i) to grant or renew a licence under sub-section 81 (1) of the Act;
(ii) to suspend or revoke a licence under sub-section 88 (1) of the Act;
(iii) to determine program standards; or
(b) any other matter determined by the Tribunal to be of significant public interest.
NOTE
1. Notified in the Commonwealth of Australia Gazette on 23 May 1986.