(a) if the notice was published in the Gazette before the commencement of this section—the commencement of this section; or
(b) if the notice is published in the Gazette after the commencement of this section—the day on which the notice is published in the Gazette;
shall, by notice in writing published in the Gazette:
(c) if there is no licence whose service area is substantially the same as that of the proposed licence—specify a number as the population of the service area of the proposed licence; and
(d) specify the amount of the fee that will be payable, under subsection 6 (1a) of the Licence Fees Act, on the grant of the proposed licence.
“(2) The amount of the fee specified under paragraph (1) (d) shall be an amount calculated in accordance with the formula:
where:
F is the amount of the fee that would be payable under subsection 6 (2) of the Licence Fees Act in respect of gross earnings in respect of a licence if:
(a) the gross earnings were equal to the amount of the comparable gross earnings in respect of the proposed licence; and
(b) the fee were calculated in accordance with the Licence Fees Act as in force at the time when the notice under subsection (1) is published in relation to the proposed licence; and
M is the multiplication factor for the comparable gross earnings.
“(3) The amount of the comparable gross earnings in respect of a proposed licence is:
(a) if there is one licence only whose service area is substantially the same as that of the proposed licence—an amount equal to the gross earnings of that other licence in respect of the relevant fee period for that other licence;
(b) if there are 2 or more licences whose service areas are substantially the same as that of the proposed licence—an amount calculated in accordance with the formula:
where:
G is the sum of the gross earnings in respect of those other licences in respect of the relevant fee periods for those other licences; and
N is the number of those other licences; or
(c) in any other case—an amount calculated in accordance with the formula:
where:
P is the service area population of the proposed licence; and
D is $15, or such other amount as is fixed by the regulations.
“(4) Where the relevant fee period for a licence is not a period of 12 months, the amount of the gross earnings in respect of that licence in respect of that period shall, for the purposes of subsections (2) and (3), be taken to be the amount calculated in accordance with the formula:
where:
G is the amount of the gross earnings in respect of the licence in respect of the relevant period; and
N is the number of days in the relevant period.
“(5) Where the holder of a licence whose service area is substantially the same as that of the proposed licence fails to comply with paragraph 123 (1) (c) in relation to the relevant fee period for the licence, the gross earnings in respect of the licence shall, for the purposes of subsections (2) and (3), be taken to be the amount determined by the Minister, in writing, to be the amount of those gross earnings, having regard to the following:
(a) the gross earnings in respect of that licence in respect of the next most recent period in respect of which a fee was payable in respect of that licence under the Licence Fees Act;
(b) the gross earnings, in respect of any other licence whose service area overlaps that of the proposed licence, in respect of the relevant fee period for that other licence;
(c) if the holder of a licence whose service area overlaps that of the proposed licence fails to comply with paragraph 123 (1) (c) in relation to the relevant fee period for the licence—the gross earnings in respect of the licence in respect of the next most recent period in respect of which a fee was payable in respect of the licence under the Licence Fees Act.
“(6) The Minister shall, in publishing a notice under subsection (1), have regard to the most recently available official census count results.
“(7) In this section:
‘gross earnings’ has the same meaning as in the Licence Fees Act;
‘licence’ means a commercial radio licence and includes a licence in respect of a commercial broadcasting station to which the Broadcasting and Television Act 1942 as in force immediately before 1 January 1986 applies by virtue of section 98 of the Broadcasting and Television Amendment Act 1985;
‘Licence Fees Act’ means the Radio Licence Fees Act 1964 and includes the Broadcasting Stations Licence Fees Act 1964 as in force immediately before 1 January 1986 and as applied by virtue of
section 11 of the Broadcasting Stations Licence Fees Amendment Act 1985;
‘most recently available official census count results’, in relation to a notice, means the results, as published by the Australian Statistician of the most recent census count of the Australian population:
(a) that has been taken; and
(b) whose results have been published by the Australian Statistician;
‘multiplication factor’, in relation to comparable gross earnings, means:
(a) if those earnings are less than $2,500,000—the number 30;
(b) if those earnings are equal to or greater than $2,500,000 but less than $3,500,000—the number 35; or
(c) if those earnings are equal to or greater than $3,500,000— the number 40;
‘relevant fee period’, in relation to a licence (in this definition called the ‘existing licence’) whose service area is substantially the same as or overlaps that of the proposed commercial radio licence, means the most recent period in respect of which a fee was payable in respect of the existing licence under subsection 6 (2) of the Licence Fees Act, where the 6 months referred to in paragraph 123 (1) (c) beginning at the end of the period had ended before the day on which the notice under subsection 82 (1) in relation to the proposed commercial radio licence was published in the Gazette;
‘service area population’, in relation to a licence whose service area overlaps that of the proposed commercial radio licence, means the number specified as the population of the service area of that licence in the notice under subsection (1) in relation to the proposed licence.”.
Consideration of licence applications by Tribunal
4. Section 83 of the Principal Act is amended:
(a) by omitting from subsection (9) “Where” and substituting “Subject to subsection (10), where”; and
(b) by adding at the end the following subsections:
“(10) Where the licence is a commercial radio licence, the following provisions have effect:
(a) the Tribunal shall give the eligible applicant who, in the opinion of the Tribunal, is the most suitable applicant notice in writing that the licence is available to that applicant;
(b) if an applicant who is given notice under paragraph (a) or (c) tenders to the Commonwealth, before the end of the relevant period, an amount equal to the amount of the establishment fee, the Tribunal shall grant the licence to that applicant;
(c) if an applicant who is given notice under paragraph (a) or this paragraph does not tender to the Commonwealth, before the end of the relevant period, an amount equal to the amount of the establishment fee and there is at least one other eligible applicant:
(i) the application by the applicant given that notice shall be deemed to have been withdrawn; and
(ii) the Tribunal shall give the remaining eligible applicant, or the one of the remaining eligible applicants who, in the opinion of the Tribunal, is the most suitable applicant, notice in writing that the licence is available to that applicant;
(d) if an applicant who is given notice under paragraph (a) or (c) does not tender to the Commonwealth, before the end of the relevant period, an amount equal to the amount of the establishment fee, the Minister may:
(i) determine that, even though the relevant period has ended, the licence shall continue to be available to that applicant for such further period as is specified in the determination; or
(ii) determine that a fresh notice under subsection 82 (1) should be published in relation to the proposed grant of the licence;
(e) if a determination is made under subparagraph (d) (i) in relation to an applicant and the applicant, before the end of the further period specified in the determination, tenders to the Commonwealth, an amount equal to the sum of:
(i) the amount of the establishment fee; and
(ii) the amount of any late payment charge payable under paragraph (f);
the Tribunal shall grant the licence to the applicant;
(f) where an applicant in relation to whom a determination under subparagraph (d) (i) has been made tenders to the Commonwealth, after the end of the relevant period, an amount in respect of the establishment fee, an additional fee is due and payable by way of penalty by the applicant at the rate of 20% per annum on the amount tendered, computed from the end of the relevant period until the day on which the amount is tendered;
(g) if a determination is made under subparagraph (d) (i) in relation to an applicant and the applicant does not tender to the Commonwealth, before the end of the further period specified in the determination, an amount equal to the sum of the amounts specified in subparagraphs (e) (i) and (ii), the Minister may determine that a fresh notice under
subsection 82 (1) should be published in relation to the proposed grant of the licence.
“(11) In subsection (10):
‘eligible applicant’, in relation to the grant of a commercial radio licence, means a person to whom, but for subsection (9), the Tribunal would be required to grant the licence;
‘establishment fee’, in relation to the grant of a commercial radio licence, means the fee payable on the grant of the licence under subsection 6 (1a) of the Radio Licence Fees Act 1964;
‘relevant period’, in relation to an applicant who is given notice under paragraph (10) (a) or (c), means:
(a) the period of 60 days commencing on the day on which the notice is given; or
(b) if, before the end of that period, legal proceedings are commenced to challenge the giving of the notice or to prevent the granting of the licence to the applicant— the period of 30 days commencing on the day after the termination of all such proceedings (whether commenced before or after the end of the period referred to in paragraph (a));
‘termination’ includes termination by way of withdrawal or final determination and, when used in relation to legal proceedings, includes the termination of any appeal arising out of those proceedings.”.
Transfer of licences
5. Section 89a of the Principal Act is amended by omitting from subsection (1) “section 89b” and substituting “sections 89b and 89c”.
6. (1) After section 89b of the Principal Act the following section is inserted:
No transfer of commercial licence within 2 years of initial grant
“89c. (1) A commercial licence shall not be transferred to a person, and a person shall not be admitted to participate in any of the benefits of a commercial licence or to exercise any of the powers or authorities granted by a commercial licence, before the end of the period of 2 years commencing on the day of commencement of the licence.
“(2) Subsection (1) does not apply to:
(a) the grant of a commercial radio licence or a commercial television licence under section 99 or 99a of the Broadcasting and Television Amendment Act 1985; or
(b) the grant of a commercial television licence under section 94zc or 94zg of this Act.”.
(2) The amendment made by subsection (1) does not apply in relation to a licence that was granted before the commencement of this section.
7. After section 90g of the Principal Act the following section is inserted:
No “resale” of licence within 2 years of initial grant
“90h. (1) Where a licence is granted (otherwise than by way of renewal) after the commencement of this section, a notifiable share transaction in respect of the licence shall not be entered into or conducted within 2 years after the day of commencement of the licence unless the Tribunal has, before the transaction is entered into or conducted, provisionally cleared the transaction under subsection (3).
“(2) A purported transaction that is entered into or conducted in contravention of subsection (1) is, subject to subsection (5), void.
“(3) Where a notifiable share transaction in respect of a licence is proposed, a person (whether a party to the transaction or not and whether a person to whom section 90j applies in relation to the transaction or not) may apply to the Tribunal for provisional clearance of the transaction and, where an application is made, the Tribunal shall:
(a) if satisfied that the transaction:
(i) would not effect a transfer of control of the licence; or
(ii) would effect a transfer of control of the licence but should be provisionally cleared because of exceptional circumstances;
provisionally clear the transaction; or
(b) in any other case—refuse to provisionally clear the transaction.
“(4) Where:
(a) a purported transaction in respect of a licence is entered into or conducted in contravention of subsection (1); and
(b) the Tribunal has not refused to provisionally clear the transaction;
a person may apply to the Tribunal for a declaration that subsection (2) not apply to the transaction and the Tribunal, if satisfied that:
(c) the transaction would not effect a transfer of control of the licence; or
(d) the transaction would effect a transfer of control of the licence but should be made the subject of a declaration under this subsection because of exceptional circumstances;
may declare subsection (2) not to apply to the transaction.
“(5) Where the Tribunal makes a declaration under subsection (4) in respect of a transaction, subsection (2) shall be taken never to have applied to the transaction.
“(6) Without limiting the generality of subparagraph (3) (a) (ii) and paragraph (4) (d), the Tribunal, in determining whether exceptional circumstances exist, may have regard to any of the following matters:
(a) the death, bankruptcy or insolvency of any person;
(b) the liquidation or winding up of any company;
(c) any order made by a court.
“(7) For the purposes of this section:
(a) a transaction shall be taken to effect a transfer of control of a licence if, and only if, as a direct or indirect consequence of the transaction:
(i) a person who was, at the time when the licence was granted, in a position to exercise control, directly or indirectly, of the licence ceases to be in a position to exercise control of the licence; or
(ii) a person who was not, at the time when the licence was granted, in a position to exercise control, directly or indirectly, of the licence is put in a position to exercise control of the licence; and
(b) in determining whether a person is in a position to exercise control of a licence, section 90aaa applies but sections 90aab and 90b do not apply.
“(8) Nothing in this section (including a provisional clearance under subsection (3) or a declaration under subsection (4)) shall be taken, by implication, to affect the operation of section 90j in relation to a transaction.
“(9) Subsection (1) does not apply to the grant of a licence under section 99 or 99a of the Broadcasting and Television Amendment Act 1985.
“(10) A reference in this section to a notifiable share transaction in respect of a licence is a reference to a transaction in respect of shares in the company holding a licence, or shares in a company having an interest in the company holding the licence, that is a transaction in relation to which section 90j applies to a person.”.
8. After section 92d of the Principal Act the following section is inserted:
No “resale” of licence within 2 years of initial grant
“92e. (1) Where a licence is granted (otherwise than by way of renewal) after the commencement of this section, a notifiable share or debenture transaction in respect of the licence shall not be entered into or conducted within 2 years after the day of commencement of the licence unless the Tribunal has, before the transaction is entered into or conducted, provisionally cleared the transaction under subsection (3).
“(2) A purported transaction that is entered into or conducted in contravention of subsection (1) is, subject to subsection (5), void.
“(3) Where a notifiable share or debenture transaction in respect of a licence is proposed, a person (whether a party to the transaction or not and whether a person to whom section 92f applies in relation to the transaction
or not) may apply to the Tribunal for provisional clearance of the transaction and, where an application is made, the Tribunal shall:
(a) if satisfied that the transaction:
(i) would not effect a transfer of control of the licence; or
(ii) would effect a transfer of control of the licence but should be provisionally cleared because of exceptional circumstances;
provisionally clear the transaction; or
(b) in any other case—refuse to provisionally clear the transaction.
“(4) Where:
(a) a purported transaction is entered into or conducted in contravention of subsection (1); and
(b) the Tribunal has not refused to provisionally clear the transaction;
a person may apply to the Tribunal for a declaration that subsection (2) not apply to the transaction and the Tribunal, if satisfied that:
(c) the transaction would not effect a transfer of control of the licence; or
(d) the transaction would effect a transfer of control of the licence but should be made the subject of a declaration under this subsection because of exceptional circumstances;
may declare subsection (2) not to apply to the transaction.
“(5) Where the Tribunal makes a declaration under subsection (4) in respect of a transaction, subsection (2) shall be taken never to have applied to the transaction.
“(6) Without limiting the generality of subparagraph (3) (a) (ii) and paragraph (4) (d), the Tribunal, in determining whether exceptional circumstances exist, may have regard to any of the following matters:
(a) the death, bankruptcy or insolvency of any person;
(b) the liquidation or winding up of any company;
(c) any order made by a court.
“(7) For the purposes of this section:
(a) a transaction shall be taken to effect a transfer of control of a licence if, and only if, as a direct or indirect consequence of the transaction:
(i) a person who was, at the time when the licence was granted, in a position to exercise control, directly or indirectly, of the licence ceases to be in a position to exercise control of the licence; or
(ii) a person who was not, at the time when the licence was granted, in a position to exercise control, directly or indirectly, of the licence is put in a position to exercise control of the licence; and
(b) in determining whether a person is in a position to exercise control of a licence, section 91aaa applies but sections 91aac and 91a do not apply.
“(8) Nothing in this section (including a provisional clearance under subsection (3) or a declaration under subsection (4)) shall be taken, by implication, to affect the operation of section 92f in relation to a transaction.
“(9) Subsection (1) does not apply to the grant of a licence under:
(a) section 99 or 99a of the Broadcasting and Television Amendment Act 1985; or
(b) section 94zc or 94zg of this Act.
“(10) A reference in this section to a notifiable share or debenture transaction in respect of a licence is a reference to a transaction in respect of shares or debentures in the company holding a licence, or shares in a company having an interest in the company holding the licence, that is a transaction in relation to which section 92f applies to a person.”.
Review of decisions
9. Section 119a of the Principal Act is amended by inserting after paragraph (1) (g) the following paragraph:
“(gaa) a refusal by the Tribunal to grant a provisional clearance or a declaration under section 90h or 92e;”.
Assembly of information
10. Section 124 of the Principal Act is amended by adding at the end the following subsection:
“(6) Nothing in subsection (4) or (5) shall be taken to prevent the Tribunal from making information available to the Minister for the purposes of the calculation of the amount of a fee to be specified in a notice under subsection 82aa (1).”.
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, 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; and Nos. 68, 79 and 80, 1987.
[Minister’s second reading speech made in—
House of Representatives on 28 October 1987
Senate on 19 November 1987]