Broadcasting Amendment Act (No. 3) 1987
No. 184 of 1987
An Act to amend the Broadcasting Act 1942, and for related purposes
[Assented to 30 December 1987]
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
PART I—PRELIMINARY
Short title
1. This Act may be cited as the Broadcasting Amendment Act (No. 3) 1987.
Commencement
2. (1) Subject to subsections (2) and (3), this Act shall come into operation on the twenty-eighth day after the day on which it receives the Royal Assent.
(2) Section 40 shall be deemed to have come into operation immediately after the commencement of Part III of the Broadcasting and Television Legislation Amendment Act 1985.
(3) Subsection 34 (8) shall come into operation on a day to be fixed by Proclamation.
PART II—AMENDMENT OF THE BROADCASTING ACT 1942
Principal Act
3. In this Part, “Principal Act” means the Broadcasting Act 19421.
Interpretation
4. Section 4 of the Principal Act is amended:
(a) by inserting in subsection (1) the following definitions:
“ ‘constituent documents’, in relation to a corporation, means:
(a) if the corporation has a memorandum and articles of association—the memorandum and articles of association of the corporation; or
(b) in any other case—the documents:
(i) under, or by virtue of which, the corporation is established; and
(ii) that define the constitution of the corporation and contain the rules governing the meetings and other proceedings of the corporation;
‘government corporation’ means a corporation established for a public purpose by or under a law of the Commonwealth, a State or a Territory (other than a corporation prescribed, or falling in a class of corporations prescribed, by the regulations for the purpose of this definition);
‘Parliament’ means:
(a) the Parliament of the Commonwealth;
(b) a State Parliament;
(c) the Legislative Assembly of the Northern Territory; and
(d) any other body or assembly declared by the regulations to be a Parliament for the purposes of this definition;
‘political party’ means an organisation whose objects or activities include the promotion of the election of a candidate or candidates endorsed by it to a Parliament;
‘statutory authority’ means:
(a) a government corporation; or
(b) an authority or body (not being a corporation) established for a public purpose by or under a law of the Commonwealth, a State or a Territory;”; and
(b) by adding at the end the following subsection:
“(12) A reference in this Act to the community to be served pursuant to a licence, in relation to a public licence granted or to be granted for the purpose of serving a particular special interest, or particular special interests, of a section of the community that is located within the service area of the licence, shall be read as a reference to that section of the community.”.
Associate members
5. Section 11 of the Principal Act is amended:
(a) by omitting subsection (1) and substituting the following subsections:
“(1) The Chairman of the Tribunal may notify the Minister that the Chairman considers that the Tribunal should be assisted by an associate member in relation to:
(a) a particular inquiry (including an inquiry that has already commenced);
(b) a particular class of inquiries; or
(c) inquiries by the Tribunal in general.
“(1a) Where the Chairman notifies the Minister under subsection (1), the Governor-General may, subject to this section, appoint a person accordingly to be an associate member of the Tribunal.
“(1b) The instrument of appointment of a person appointed under subsection (1a) shall specify either that:
(a) the person is appointed for the purposes of a particular inquiry specified in the instrument;
(b) the person is appointed for the purposes of a particular class of inquiries specified in the instrument; or
(c) the person is appointed for the purposes of inquiries by the Tribunal in general.”;
(b) by omitting subsection (3) and substituting the following subsections:
“(3) Subject to subsection (3c), an associate member shall be appointed:
(a) if appointed for the purposes of a particular inquiry—for the period commencing on the day specified in the instrument of appointment as the day on which the appointment takes effect and ending on the day on which the Tribunal completes the inquiry; or
(b) in any other case—for the period (not exceeding 2 years) specified in the instrument of appointment;
but is eligible for re-appointment.
“(3a) A person who has attained the age of 65 years shall not be appointed as an associate member for the purpose of a particular inquiry.
“(3b) A person who has attained the age of 65 years shall not be appointed as an associate member for the purposes of a particular class of inquiries or inquiries by the Tribunal in general and, subject to subsection (3c), a person shall not be appointed as such an associate member for a period that extends beyond the day on which the person will attain the age of 65 years.
“(3c) Where:
(a) an associate member is designated, under section 15c, as a member of a Division constituted for the purposes of a particular inquiry; and
(b) apart from this subsection, the appointment of the associate member would end before the Tribunal completes the inquiry;
the appointment of the associate member continues, subject to sections 15 and 15a, until the Tribunal completes the inquiry.”; and
(c) by omitting subsections (5) and (6) and substituting the following subsections:
“(5) A person may hold 2 or more appointments under this section at the same time.
“(6) A person appointed as an associate member under subsection (1a):
(a) has, and may exercise, all the powers, and shall perform all the functions, of a member; and
(b) shall be deemed to be a member for the purposes of section 15b;
in relation to the making by the Tribunal of a decision, recommendation or report on the matter or matters the subject of:
(c) if the person was appointed for the purposes of a particular inquiry—that inquiry; or
(d) in any other case—any inquiry in respect of which the person is designated by the Chairman under section 15c”.
Acting associate members
6. Section 12 of the Principal Act is amended:
(a) by omitting from subsection (1) “, in relation to a particular inquiry,”;
(b) by omitting from subsection (4) “for the purposes of a particular inquiry”;
(c) by omitting from subsection (4) “for the purposes of that inquiry”;
(d) by omitting from subsection (4) “sections 13” and substituting “subsection 11 (6) and sections 13, 15c”; and
(e) by omitting subsection (6) and substituting the following subsection:
“(6) Where a person is acting as an associate member and the person:
(a) is a member of a Division constituted for the purposes of a particular inquiry; or
(b) is a member of 2 or more Divisions, each of which is constituted for the purposes of a particular inquiry;
the Governor-General may direct that the person shall continue so to act after the circumstances giving rise to the acting appointment cease in relation to, and for the duration of:
(c) the inquiry or inquiries specified by the Governor-General in the direction; or
(d) all of the inquiries other than the inquiry or inquiries specified by the Governor-General in the direction;
until the Governor-General directs otherwise.”.
Disclosure of financial interests by associate members
7. Section 13 of the Principal Act is amended:
(a) by inserting in subsection (2) “or an inquiry in respect of which the Chairman has designated the associate member under section 15c” after “has been appointed”; and
(b) by omitting subsection (3) and substituting the following subsection:
“(3) Where:
(a) in respect of a particular inquiry, a Division of the Tribunal includes an associate member; and
(b) the associate member has disclosed an interest under subsection (1);
the interest, whether or not it is an interest to which subsection (2) applies, shall be set out in the report of the Tribunal in relation to the inquiry.”.
Meetings
8. Section 15b of the Principal Act is amended by inserting after subsection (6) the following subsection:
“(6a) An associate member shall not be elected to preside under subsection (6) if a member appointed under section 8 or 10 is present.”.
Divisions of Tribunal
9. Section 15c of the Principal Act is amended:
(a) by omitting subsection (1) and substituting the following subsection:
“(1) The Chairman of the Tribunal may constitute a Division of the Tribunal for the purposes of an inquiry and, subject to subsection (1a), the Division shall consist of:
(a) a member or members (who may be or include the Chairman) designated by the Chairman;
(b) the associate member or associate members (if any) appointed for the purposes of that particular inquiry; and
(c) an associate member or associate members (if any) designated by the Chairman.”;
(b) by omitting paragraphs (7) (a) and (b) and substituting the following paragraphs:
“(a) designate an additional member to be a member of a Division;
(b) designate an additional associate member to be an associate member of a Division;
(c) replace a member of a Division with another member or an associate member; or
(d) replace an associate member of a Division with a member or another associate member.”;
(c) by inserting in subsection (8) “or (b)” after “paragraph (7) (a)”;
(d) by omitting from subsection (9) “(b)” and substituting “(c) or (d)”; and
(e) by inserting in subsection (9) “or associate member” after “member” (wherever occurring).
Interpretation
10. Section 17a of the Principal Act is amended by adding at the end the following subsection:
“(3) In paragraph (2) (b):
‘licence’ does not include a re-broadcasting licence or a re-transmission licence.”.
Voting in relation to inquiries
11. Section 22a of the Principal Act is amended by omitting subsection (2) and substituting the following subsection:
“(2) In subsection (1):
‘member’ includes an associate member and a person acting as a member or associate member.”.
Member or associate member ceasing to be available
12. Section 25a of the Principal Act is amended by inserting in subsection (1) “under subsection 15c (7)” after “Chairman of the Tribunal so directs”.
Reports on inquiries
13. Section 25b of the Principal Act is amended by inserting in paragraph (1) (c) “if the inquiry was held in pursuance of a direction of the Minister under section 18 or in pursuance of section 18a—” before “a summary”.
14. (1) Section 79zf of the Principal Act is repealed and the following section is substituted:
Limits on contracts
“79zf. (1) The Service shall not, without the approval of the Minister enter into a contract under which the Service is to pay or receive an amount exceeding $1,000,000 or, if a higher amount is prescribed by the regulations, that higher amount.
“(2) Subsection (1) does not apply in relation to the receipt by the Service of an amount for the sale or other disposition of radio or television programs.”.
(2) Notwithstanding the repeal effected by subsection (1), an approval in force under section 79zf of the Principal Act immediately before the commencement of this section continues in force, on and after the commencement of this section, as if it had been given under section 79zf of the Principal Act as amended by this Act.
Interpretation
15. Section 80 of the Principal Act is amended by omitting paragraph (b) of the definition of “service specification” in subsection (1) and substituting the following paragraph:
“(b) in the case of a public licence—the purpose for which the licence is granted, to the extent that that purpose is specified by the Minister in accordance with this Part;”.
Grant and renewal of licences
16. (1) Section 81 of the Principal Act is amended by inserting after subsection (4) the following subsection:
“(4aa) A public licence shall not be granted to:
(a) a government corporation; or
(b) a political party.”.
(2) Subject to subsection (3), the amendment made by subsection (1) applies only in relation to the grant of a public licence after the commencement of this section.
(3) The amendment made by subsection (1) does not apply in relation to:
(a) the grant by way of renewal of a licence that was granted before the commencement of this section; or
(b) the grant of a licence under section 99 or 99a of the Broadcasting and Television Amendment Act 1985.
17. (1) After section 81 of the Principal Act the following section is inserted:
Purpose of public licence
“81a. (1) A public licence shall be granted for:
(a) general community purposes; or
(b) a special interest purpose.
“(2) In setting out, in a notice under subsection 82 (1) in relation to the grant of a public licence, the outline of the service specifications to which it is proposed the licence is to be subject, the Minister shall specify that the licence is to be:
(a) granted either for general community purposes or for a special interest purpose;
(b) granted for general community purposes; or
(c) granted for a special interest purpose.
“(3) Where, under paragraph (2) (c), the Minister specifies in a notice under subsection 82 (1) that a public licence is to be granted for a special interest purpose, the Minister may also specify in that notice the particular special interest or interests to be served pursuant to the licence.
“(4) Where the Minister publishes a notice under subsection 82 (1) in relation to the grant of a public licence, the following provisions have effect:
(a) where, under paragraph (2) (a), the Minister specifies that the licence is to be granted either for general community purposes or for a special interest purpose—the Tribunal shall determine whether the licence is to be granted for general community purposes or for a special interest purpose and, if the Tribunal determines that the licence is to be granted for a special interest purpose, determine the particular special interest or interests to be served pursuant to the licence;
(b) where, under paragraph (2) (c), the Minister specifies that the licence is to be granted for a special interest purpose but does not specify the particular special interest or interests to be served pursuant to the licence—the Tribunal shall determine the particular special interest or interests to be served pursuant to the licence.
“(5) The purpose for which a public licence is granted shall be ascertained by reference to:
(a) the service specifications of the licence; and
(b) the conditions (if any) imposed by the Tribunal on the licence pursuant to paragraph 84 (3) (b) or subsection 85 (1) or 86 (12).
“(6) For the purposes of this Part, a public licence is granted for general community purposes if the licence is granted for the purpose of serving the
general interests of the community that is located within the service area of the licence.
“(7) For the purposes of this Part, a public licence is granted for a special interest purpose if the licence is granted for the purpose of serving a particular special interest, or particular special interests, of the community, or of a section of the community, that is located within the service area of the licence.”.
(2) Subject to subsection (3), the amendment made by subsection (1) applies only in relation to the grant of a public licence after the commencement of this section.
(3) The amendment made by subsection (1) does not apply in relation to:
(a) the grant by way of renewal of a licence that was granted before the commencement of this section; or
(b) the grant of a licence under section 99 or 99a of the Broadcasting and Television Amendment Act 1985.
Applications for grant of certain licences
18. Section 82 of the Principal Act is amended by inserting after subsection (1) the following subsection:
“(2) Where a corporation applies for the grant of a public licence, the application shall be accompanied by a copy of the corporation’s constituent documents.”.
Consideration of licence applications by Tribunal
19. Section 83 of the Principal Act is amended:
(a) by inserting in subsection (6) “(other than a public licence)” after “licence” (first occurring); and
(b) by inserting after subsection (7) the following subsection:
“(7a) The Tribunal shall not refuse to grant a public licence to a person unless:
(a) the person has failed to give an undertaking in accordance with subsection (5);
(b) the Tribunal is satisfied that the grant of the licence would be contrary to a provision of this Act;
(c) it appears to the Tribunal, having regard only to the following matters or circumstances, that it is advisable in the public interest to refuse to grant the licence to the person:
(i) it is not satisfied that the person:
(a) is a fit and proper person to hold the licence;
(b) has the financial, technical and management capabilities necessary to provide an adequate and comprehensive service pursuant to the licence; and
(c) is otherwise capable of complying with the conditions of the licence;
(ii) where the service area of the licence overlaps the service area of another licence or other licences—the need for the commercial viability of the service or services provided pursuant to the other licence or other licences;
(iii) the undesirability of a person being in a position to exercise control, within the meaning of Division 6, of more than one public radio licence or more than one public television licence;
(iv) the undesirability of:
(a) the Commonwealth, a State or the Northern Territory or a statutory authority of the Commonwealth, a State or a Territory; or
(b) a political party;
being in a position to exercise control, within the meaning of Division 6, of a public licence;
(v) the undesirability of a public licence being held by a corporation whose operations pursuant to the licence will be conducted, either wholly or substantially, for the purpose of the acquisition by another person of profit or gain;
(vi) the desirability of members of the community to be served pursuant to a public licence being in a position to exercise control of the licence;
(vii) the need to encourage members of the community to be served pursuant to a public licence to participate in:
(a) the operations of the licensee in providing the service pursuant to the licence; and
(b) the selection and provision of programs to be broadcast pursuant to the licence; or
(d) it appears to the Tribunal that a licence of the kind contemplated by the matters (other than the outline of the technical conditions proposed to be included in the licence warrant) set out in a notice under paragraph 82 (1) (a) should not be granted.”.
Imposition of licence conditions
20. (1) Section 84 of the Principal Act is amended:
(a) by inserting in subsection (2) “(other than a public licence)” after “licence” (first occurring);
(b) by omitting from paragraph (2) (a) “so determined by the Minister” and substituting “determined by the Minister pursuant to subsection (1)”; and
(c) by adding at the end the following subsection:
“(3) Upon the grant of a public licence, the conditions of the licence are:
(a) the specifications determined by the Minister pursuant to subsection (1);
(b) the conditions imposed by the Tribunal for the purpose of giving effect to any determination by the Tribunal, pursuant to subsection 81a (4), of the purpose for which the licence is granted; and
(c) any other conditions, not relating to matters referred to in the definition of ‘service specification’ or ‘technical condition’ in subsection 80 (1), imposed by the Tribunal.”.
(2) Subject to subsection (3), the amendments made by subsection (1) apply only in relation to the grant of a public licence after the commencement of this section.
(3) The amendments made by subsection (1) do not apply in relation to:
(a) the grant by way of renewal of a licence that was granted before the commencement of this section; or
(b) the grant of a licence under section 99 or 99a of the Broadcasting and Television Amendment Act 1985.
Variation of licence conditions
21. Section 85 of the Principal Act is amended by inserting after paragraph (5) (a) the following paragraph:
“(aa) in the case of a direction to vary the particular special interest or interests to be served pursuant to a public licence granted for a special interest purpose—the Minister, or an officer authorised by the Minister in writing for the purposes of this paragraph, shall also give the Tribunal notice in writing:
(i) specifying the direction proposed to be given by the Minister; and
(ii) inviting the Tribunal to make representations to the Minister relating to the proposed direction;”.
Renewal of licences
22. (1) Section 86 of the Principal Act is amended:
(a) by omitting from subsection (11a) “(11d)” and substituting “(11d), (11da)”;
(b) by omitting from subsection (11b) “the licence” (first occurring) and substituting “a licence (other than a public licence)”; and
(c) by inserting after subsection (11d) the following subsection:
“(11da) The Tribunal shall refuse to renew a public licence if:
(a) the licensee has failed to give an undertaking under subsection (10);
(b) the Tribunal is satisfied that the renewal of the licence would be contrary to a provision of this Act; or
(c) it appears to the Tribunal, having regard only to the following matters or circumstances, that it is advisable in the public interest to refuse to renew the licence:
(i) the Tribunal is satisfied that the licensee has failed to comply with an undertaking (if any) given under subsection (10) or 83 (5), as the case may be, in relation to the licence to be renewed;
(ii) the Tribunal is satisfied that 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;
(iii) the Tribunal is satisfied that a condition of the licence has not been complied with;
(iv) the need for the commercial viability of the service provided pursuant to the licence;
(v) the undesirability of a person being in a position to exercise control, within the meaning of Division 6, of more than one public radio licence or more than one public television licence;
(vi) the undesirability of:
(a) the Commonwealth, a State or the Northern Territory or a statutory authority of the Commonwealth, a State or a Territory; or
(b) a political party;
being in a position to exercise control, within the meaning of Division 6, of a public licence;
(vii) the undesirability of a public licence being held by a corporation whose operations pursuant to the licence have been, or will be, conducted, either wholly or substantially, for the purpose of the acquisition by another person of profit or gain;
(viii) the desirability of members of the community to be served pursuant to a public licence being in a position to exercise control of the licence;
(ix) the need to encourage members of the community to be served pursuant to a public licence to participate in:
(a) the operations of the licensee in providing the service pursuant to the licence; and
(b) the selection and provision of programs to be broadcast pursuant to the licence.”.
(2) Subject to subsection (3), the amendments made by subsection (1) apply to the renewal of a public licence after the commencement of this section (including a renewal of a licence that was granted before the commencement of this section).
(3) Subparagraph 86 (11da) (c) (vi) of the Principal Act does not apply in relation to the renewal, after the commencement of this section, of a licence that:
(a) was granted before the commencement of this section; or
(b) is, after the commencement of this section, granted under section 99 or 99a of the Broadcasting and Television Amendment Act 1985.
Duration
23. (1) Section 87 of the Principal Act is amended by omitting subsection (1) and substituting the following subsection:
“(1) Subject to this Act, a licence granted otherwise than by way of renewal continues in force:
(a) in the case of a licence other than a remote licence—for such period (not exceeding 5 years) as is specified in the licence; or
(b) in the case of a remote licence—for such period (not exceeding 7 years) as is specified in the licence.”.
(2) Subject to sections 88 and 89 of the Principal Act, a remote licence that is in force immediately after the commencement of this section continues in force for the period of 7 years from the date of the grant of the licence, even though a different period is specified in the licence.
Suspension and revocation of licences
24. (1) Section 88 of the Principal Act is amended:
(a) by inserting in subsection (1) “(other than a public licence)” after “licence” (first occurring); and
(b) by inserting after subsection (1e) the following subsection:
“(1f) The Tribunal may, by notice in writing to the licensee, suspend or revoke a public licence where it appears to the Tribunal that it is advisable in the public interest to do so, having regard only to the following matters or circumstances:
(a) the Tribunal is satisfied that the licensee has failed to comply with an undertaking given under subsection 83 (5) or 86 (10), as the case may be, in relation to the licence;
(b) the Tribunal is satisfied that the licensee:
(i) is no longer a fit and proper person to hold the licence; or
(ii) no longer has the financial, technical and management capabilities necessary to provide an adequate and comprehensive service pursuant to the licence;
(c) the Tribunal is satisfied that a condition of the licence has not been complied with;
(d) the undesirability of a person being in a position to exercise control, within the meaning of Division 6, of more than one public radio licence or more than one public television licence;
(e) the undesirability of:
(i) the Commonwealth, a State or the Northern Territory or a statutory authority of the Commonwealth, a State or a Territory; or
(ii) a political party;
being in a position to exercise control, within the meaning of Division 6, of a public licence;
(f) the undesirability of a public licence being held by a corporation whose operations pursuant to the licence have been conducted, either wholly or substantially, for the purpose of the acquisition by another person of profit or gain;
(g) the desirability of members of the community to be served pursuant to a public licence being in a position to exercise control of the licence;
(h) the need to encourage members of the community to be served pursuant to a public licence to participate in:
(a) the operations of the licensee in providing the service pursuant to the licence; and
(b) the selection and provision of programs to be broadcast pursuant to the licence.”.
(2) Subject to subsection (3), the amendments made by subsection (1) apply to the revocation or suspension of a public licence whether granted before or after the commencement of this section.
(3) Paragraph 88 (1a) (e) of the Principal Act does not apply in relation to the revocation or suspension, after the commencement of this section, of a licence that:
(a) was granted before the commencement of this section; or
(b) is, after the commencement of this section, granted under section 99 or 99a of the Broadcasting and Television Amendment Act 1985.
Transfer of licences
25. Section 89a of the Principal Act is amended by omitting from subsection (1d) “Subject to subsection (1b), the” and substituting “The”.
26. Section 89b of the Principal Act is repealed and the following section is substituted:
Limitation on transfer etc. of commercial and public licences
“89b. (1) A commercial licence shall not be transferred to a person if the person would, by virtue of subsection 81 (3), be ineligible for the grant of the licence.
“(2) A public licence may not be transferred.
“(3) 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, if the person would be ineligible for the grant of the licence under subsection 81 (3).
“(4) A person shall not be admitted to participate in any of the benefits of a public licence, or to exercise any of the powers or authorities granted by a public licence, if the person would be ineligible for the grant of the licence under subsection 81 (4) or (4aa).”.
Licence warrants
27. Section 89d of the Principal Act is amended:
(a) by omitting from paragraph (3) (a) “a re-transmission licence or a remote licence” and substituting “a remote licence, public licence or re-transmission licence”; and
(b) by inserting after paragraph (3) (b) the following paragraph:
“(ba) in the case of a public licence—authorises the operation, in accordance with the warrant and by a person or persons specified in the warrant, of a particular radiocommunications transmitter or transmitters (which may be, or may include, a transmitter that is on an Aussat satellite) for the purpose of the transmission to the general public of radio programs or television programs, as the case requires;”.
Changes in memorandum or articles of association of licensee
28. Section 90k of the Principal Act is amended by omitting subsection (2) and substituting the following subsections:
“(2) A purported change in the memorandum or articles of association of a company holding a licence is, except for the purposes of determining whether the company has breached the condition referred to in subsection (1), of no effect unless the Tribunal approves the change.
“(2a) Where the Tribunal approves a change in the memorandum or articles of association of a company under subsection (2), the change commences to have effect on:
(a) the day on which the change would, but for this subsection, take effect; or
(b) the day on which the Tribunal approves the change; whichever is the later.”.
Changes in memorandum or articles of association of licensee
29. Section 92fa of the Principal Act is amended by omitting subsection (2) and substituting the following subsections:
“(2) A purported change in the memorandum or articles of association of a company holding a licence is, except for the purposes of determining whether the company has breached the condition referred to in subsection (1), of no effect unless the Tribunal approves the change.
“(2a) Where the Tribunal approves a change in the memorandum or articles of association of a company under subsection (2), the change commences to have effect on:
(a) the day on which the change would, but for this subsection, take effect; or
(b) the day on which the Tribunal approves the change; whichever is the later.”.
30. (1) After Division 5 of Part IIIb of the Principal Act the following Division is inserted in that Part:
“Division 6—Ownership and control of public licences
Interpretation
“92x. (1) In this Division:
‘control’ includes direct or indirect control and control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
“(2) For the purposes of this Act, a person shall be deemed to be in a position to exercise control of a public licence if the person is:
(a) in a position to exercise control of the corporation that holds the licence; or
(b) in a position to exercise control of:
(i) the operations of the licensee in providing the service pursuant to the licence; or
(ii) the selection or provision of programs to be broadcast pursuant to the licence.
“(3) For the purposes of this Act, a person shall be deemed (but not to the exclusion of any other person) to be in a position to exercise control of a corporation if the person is, in the opinion of the Tribunal, in a position to exercise control of the corporation.
“(4) Paragraph (2) (b) does not apply to a person in relation to a public licence:
(a) in the case of a person sponsoring a program or programs under an agreement made in the ordinary course of business—by reason only of the person’s rights in respect of that program or those programs or of the fact that the person has, under a contract relating to the person’s sponsorship of that program or those programs, rights that are reasonably necessary to ensure to the person the full commercial benefit of that sponsorship; or
(b) in the case of a person carrying on the business of supplying programs—by reason only of the person’s rights under a contract for the supply by the person of programs to be broadcast pursuant to the licence, being rights created in good faith in the ordinary course of that business for the purpose only of protecting the person’s commerical interests as a supplier of programs.
Ownership and control of public licences
“92y. The ownership and control of public licences is governed by subsections 83 (7a), 86(11da), 88 (1a) and 89b (2) and (4) and section 92z.
Changes to constituent documents
“92z. A public licence is subject to a condition that the corporation holding a licence will give the Tribunal notice in writing of any change to the constituent documents of the corporation within 28 days after the day on which the change takes effect.”.
(2) The amendment made by subsection (1) applies to public licences whether granted before or after the commencement of this section.
Special provisions relating to advertisements
31. Section 100 of the Principal Act is amended by omitting subsection (6) and substituting the following subsections:
“(6) A licensee shall not broadcast an advertisement relating to a medicine unless the text of the proposed advertisement has been approved:
(a) by the Secretary to the Department of Community Services and Health under subsection (6b); or
(b) by the Minister on appeal to the Minister under this section.
“(6a) A person may apply, in writing, to the Secretary to the Department of Community Services and Health for approval of the text of a proposed advertisement relating to a medicine.
“(6b) Where an application is made under subsection (6a), the Secretary to the Department of Community Services and Health may, in writing, approve or disapprove the text.
“(6c) Where the Secretary to the Department of Community Services and Health approves or disapproves the text of a proposed advertisement relating to a medicine, the Secretary shall give the applicant written notice of the approval or disapproval.
“(6d) Where:
(a) an application is made under subsection (6a) for approval of the text of a proposed advertisement relating to a medicine; and
(b) the period of 60 days commencing on the day on which the application is made ends without the Secretary to the Department of Community Services and Health having given the applicant written notice of the Secretary’s approval or disapproval of the text;
the Secretary shall be deemed to have approved the text under subsection (6b) at the end of that period.”.
32. Section 117 of the Principal Act is repealed and the following section is substituted:
Identification etc. in relation to political matter
“117. (1) Where the Corporation or a licensee broadcasts political matter at the request of another person, the Corporation or the licensee shall, immediately afterwards:
(a) if the matter is broadcast by radio—cause the required particulars in relation to the matter to be announced; or
(b) if the matter is televised:
(i) cause the required particulars in relation to the matter (other than the particulars referred to in paragraph (c) of the definition of ‘required particulars’ in subsection (4)) to be announced; and
(ii) cause all the required particulars in relation to the matter to be transmitted in the form of images of words.
“(2) The Corporation or a licensee shall, in relation to political matter broadcast at the request of another person, keep a record of:
(a) if the broadcasting of the political matter was authorised by a natural person—the name, address and occupation of the person; and
(b) in any other case—the name, and the address of the principal office, of the person who authorised the broadcasting of the political matter;
for the required period and shall give the Tribunal any particulars of the record that the Tribunal, by written notice, requires.
“(3) For the purposes of this section, a person shall be deemed to authorise the broadcasting of political matter if, and only if, the person is the person responsible for approval of the content of the political matter and the decision to present it for broadcasting.
“(4) In this section:
‘election’ means an election to a Parliament;
‘election period’ has the same meaning as in section 116;
‘person’ includes a political party, a corporation and any other association (whether incorporated or unincorporated);
‘political matter’ means matter:
(a) that is intended or calculated to influence the voting intentions of electors in respect of, or otherwise to affect the result of, an election or referendum;
(b) that is likely, in all the circumstances, to influence the voting intentions of reasonable electors in respect of an election or referendum; or
(c) referring to a meeting held or to be held in connection with an election or referendum;
‘referendum’ means the submission to the electors of a proposed law for the alteration of the Constitution, whether or not the proposal to make the submission has been announced;
‘required particulars’, in relation to a political matter that is broadcast, means:
(a) where the broadcasting of the political matter was authorised by a political party:
(i) the name of the political party;
(ii) the town, city or suburb in which the principal office of the political party is situated; and
(iii) the name of the natural person responsible for giving effect to the authorisation;
(b) where the broadcasting of the political matter was authorised by a person other than a political party:
(i) the name of the person who authorised the broadcasting of the political matter; and
(ii) the town, city or suburb in which the person lives or, if the person is a corporation or association, in which the principal office of the person is situated; and
(c) in every case—the name of every speaker who, either in person or by means of a sound recording device, delivers an address or makes a statement that forms part of that matter;
‘required period’, in relation to the keeping of a record in relation to political matter, means:
(a) subject to paragraph (b), the period of 6 weeks commencing on the day on which the matter was broadcast; or
(b) if the matter relates to an election within the meaning of section 116 and was broadcast during the election period in relation to the election—the period commencing on the day on which the matter was broadcast and ending:
(i) at the end of the period referred to in paragraph (a); or
(ii) if that period ends before the day on which the writ for the election is returned—the day on which the writ is returned;
or such longer period as the Tribunal, before the end of that period, directs by notice in writing to the licensee concerned.”.
Special provisions relating to public licences
33. (1) Section 119ab of the Principal Act is amended:
(a) by omitting from subsection (1) “the special purpose specified in the licence” and substituting “the purpose for which the licence is granted”; and
(b) by omitting subsection (3) and substituting the following subsections:
“(3) Nothing in subsection (2) shall be taken to prevent the holder of a public radio licence from broadcasting, in accordance with any applicable program standards:
(a) community information (whether by way of announcement, interview or otherwise);
(b) material which announces or promotes the service provided under the licence, including, without limiting the generality of this:
(i) material (whether by way of the announcement or promotion of activities, events, products or services or otherwise) likely to induce the public to support, whether financially or otherwise, or to make use of, the service provided under the licence; and
(ii) material which announces or promotes a particular program or programs provided under the licence; or
(c) a sponsorship announcement.
“(3a) For the purpose of determining whether information is community information for the purposes of paragraph (3) (a), regard shall be had to whether the holder of the licence received, or is to receive, payment or other consideration for broadcasting the information.
“(3b) For the purposes of paragraph (3) (c), a sponsorship announcement:
(a) shall not promote activities, events, products, services or programs other than activities, events, products, services or programs referred to in paragraph (3) (b);
(b) may acknowledge the support, whether financial or otherwise, of a person or persons:
(i) in respect of a particular program or programs provided under the licence; or
(ii) generally in respect of the service provided under the licence; and
(c) may specify the name and address of, and a concise description of the general nature of any business, undertaking or activity carried on by, that person or those persons.
“(4) It is a condition of a public licence that any money derived by the licensee from the operation of the service provided pursuant to the licence shall not be expended otherwise than:
(a) for or in connection with the provision, maintenance or improvement of that service; or
(b) for the benefit of public broadcasting generally.”.
(2) The amendment made by paragraph (1) (a) does not apply in relation to a public licence that:
(a) was granted before the commencement of this section; or
(b) is, after the commencement of this section, granted under section 99 or 99a of the Broadcasting and Television Amendment Act 1985.
Conversion of existing commercial licence to public licence
34. (1) The Minister may, by written notice, direct the Tribunal to grant a public radio licence to Community Radio Melbourne Pty Ltd and the Tribunal shall, without holding an inquiry, comply with the direction.
(2) Before the Minister gives the direction under subsection (1), the Minister shall determine:
(a) the service specifications to which it is proposed that the licence be subject; and
(b) the particular special interest or interests to be served pursuant to the licence.
(3) The direction by the Minister under subsection (1) shall specify the particular special interest or interests to be served pursuant to the licence as determined by the Minister under subsection (2).
(4) Upon the grant of the licence pursuant to subsection (1), the Minister shall grant a licence warrant in relation to the licence in accordance with section 89d of the Principal Act.
(5) The licence granted pursuant to subsection (1) shall:
(a) have the specifications determined by the Minister under subsection (2); and
(b) be expressed to commence on the day on which subsection (8) comes into operation and to end on 3 September 1990.
(6) Subject to subsections 85 (1) and 86 (12) of the Principal Act, the licence granted pursuant to subsection (1) is subject to the following conditions:
(a) the specifications determined by the Minister under subsection (2);
(b) the conditions imposed by the Tribunal for the purpose of giving effect to the determination by the Minister, under subsection (2), of the purpose for which the licence is granted.
(7) In imposing conditions pursuant to paragraph (6) (b), the Tribunal shall, as far as practicable, impose conditions consistent with:
(a) the fact that the licence is a public licence; and
(b) the conditions applicable, immediately before the commencement of subsection (8), to the licence referred to in that subsection.
(8) Upon the commencement of this subsection, the licence held by Community Radio Melbourne Pty Ltd under the Principal Act, being the licence expressed to end on 3 September 1990, is, by force of this subsection, revoked.
Minor amendments of Principal Act
35. The Principal Act is amended as set out in Schedule 1 to this Act.
Amendments 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
36. (1) Without prejudice to the effect that the applicable sections have apart from this subsection, those sections also have effect, 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, as if references in the applicable sections to the Principal Act were references to the Broadcasting and Television Act 1942 as in force immediately before 1 January 1986.
(2) 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 as set out in Schedule 2 to this Act.
(3) The amendment made by Schedule 2 inserting section 111bg applies to public licences whether granted before or after the commencement of this section.
(4) In this section:
“applicable sections” means sections 4 “to 13 (inclusive), 15, 21, 22, 24, 25, 26, 27 and 32.
PART III—CONSEQUENTIAL AMENDMENT OF THE COMMONWEALTH ELECTORAL ACT 1918
Principal Act
37. In this Part, “Principal Act” means the Commonwealth Electoral Act 19182.
Repeal of section 333
38. Section 333 of the Principal Act is repealed.
PART IV—AMENDMENT OF THE BROADCASTING AND TELEVISION AMENDMENT ACT 1985
Principal Act
39. In this Part, “Principal Act” means the Broadcasting and Television Amendment Act 19853.
Continued application of previous Act
40. Section 98 of the Principal Act is amended by adding at the end the following subsections:
“(5) Without limiting the generality of paragraph (1) (a) but subject to subsection (2), the previous Act continues to apply in relation to the holding by the Tribunal of an inquiry for the purposes of determining standards to be observed by licensees in respect of the broadcasting or televising of programs if that inquiry commenced before the commencement date.
“(6) Where the Tribunal had commenced an inquiry, before the commencement date, for the purposes of determining standards to be observed by licensees in respect of the broadcasting or televising of programs, any standard determined by the Tribunal after the commencement date in the course of, or as a result of, the inquiry applies, by force of this subsection, in relation to, and in relation to holders of, new system licences as if the standard had been determined under the amended Act.
“(7) The amendments made by this Act do not apply in relation to an inquiry conducted by the Tribunal for the purpose of determining whether to cancel the registration of a person under section 91c of the Principal Act if that inquiry commenced before the commencement date.”.
Conversion of old system licences
41. Section 99 of the Principal Act is amended:
(a) by omitting subsection (6) and substituting the following subsections:
“(6) Immediately after giving a direction under subsection (1) for the grant of a new system licence, the Minister shall grant to the licensee a licence warrant in respect of the new system licence under section 89d of the amended Act.
“(6a) For the purpose only of enabling the grant of a licence warrant in accordance with subsection (6), the new system licence shall be deemed to be granted to the licensee when the Minister gives the direction under subsection (1).
“(6b) A licence warrant granted in accordance with subsection (6) comes into force on the day on which the Tribunal grants the new system licence under subsection (1).”; and
(b) by inserting after subsection (8) the following subsection:
“(8a) Where:
(a) the Tribunal has commenced or commences an inquiry in relation to an old system licence; and
(b) before the inquiry is completed, the Tribunal grants a new system licence to the licensee under subsection (1) in substitution for the old system licence;
the following provisions have effect:
(c) the inquiry may be completed and the Tribunal may make decisions in the course of, or as a result of, the inquiry as if the old system licence continued in force after the grant of the new system licence;
(d) the Tribunal may make, without holding further inquiries, any decision in relation to the new system licence that the Tribunal could make in relation to the old system licence under paragraph (c).”.
Conversion of old system licences where no substantial change to service area or conditions
42. Section 99a of the Principal Act is amended:
(a) by omitting subsection (6) and substituting the following subsections:
“(6) Immediately after giving a direction under subsection (1) for the grant of a new system licence, the Minister shall grant to the licensee a licence warrant in respect of the new system licence under section 89d of the amended Act.
“(6a) For the purpose only of enabling the grant of a licence warrant in accordance with subsection (6), the new system licence shall be deemed to be granted to the licensee when the Minister gives the direction under subsection (1).
“(6b) A licence warrant granted in accordance with subsection (6) comes into force on the day on which the Tribunal grants the new system licence under subsection (1).”; and
(b) by inserting after subsection (8) the following subsection:
“(8a) Where:
(a) the Tribunal has commenced or commences an inquiry in relation to an old system licence; and
(b) before the inquiry is completed, the Tribunal grants a new system licence to the licensee under subsection (1) in substitution for the old system licence;
the following provisions have effect:
(c) the inquiry may be completed and the Tribunal may make decisions in the course of, or as a result of, the inquiry as if the old system licence continued in force after the grant of the new system licence;
(d) the Tribunal may make, without holding further inquiries, any decision in relation to the new system licence that the Tribunal could make in relation to the old system licence under paragraph (c).”.
————
SCHEDULE 1 Section 35
minor amendments of broadcasting act 1942
Subsection 12 (6):
Omit “purposes for which”, substitute “purposes of which”.
Subsection 15e (2):
Omit “Permanent Head”, substitute “Secretary”.
Subsection 15e (3):
Omit “Permanent Head”, substitute “Secretary”.
Paragraph 17a (2) (r):
Omit the paragraph, substitute the following paragraph:
“(r) to give approval to the holders of supplementary radio licences under subsection 119a (2).”.
Subsection 78a (1):
(a) Omit “or has prohibited the broadcasting or televising of any matter or made any requirement under section 77”.
(b) Omit “or notifying such prohibition or requirement”.
(c) Omit “, prohibition or requirement, as the case may be”.
Subsection 78a (2):
(a) Omit “sections 64 and 77”, substitute “section 64”.
(b) Omit “those sections as they apply”, substitute “that section as it applies”.
Subsection 94l (1):
Omit “or section 94ze”.
Subsection 94n (1):
Omit “or section 94ze”.
Subsections 100 (7), (8) and (9):
Omit “Department of Health” (wherever occurring), substitute “Department of Community Services and Health”.
Section 105a:
(a) Omit “has prohibited the broadcasting of any matter or”.
(b) Omit “subsection 99 (3) or”.
(c) Omit “prohibition or requirement, as the case may be”, substitute “requirement”.
Subsection 119ab (3):
Omit “Subject to subsection (4), the”, substitute “The”.
SCHEDULE 1—continued
Paragraph 119a (1) (h):
Omit “110”, substitute “125b”.
Paragraph 123 (1) (a):
Omit “radio”.
Subsection 133 (2):
Omit “subsection 99 (3) or”.
————
SCHEDULE 2 Section 36
AMENDMENTS 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
New Division heading:
The following Division heading is inserted after the heading to Part IVA:
“Division 1—General”.
Section 111a:
Add at the end the following subsection:
“(3) It is a condition of a public broadcasting licence or public television licence that any money derived by the licensee from the operation of the service provided pursuant to the licence shall not be expended otherwise than:
(a) for or in connection with provision, maintenance or improvement of that service; or
(b) for the benefit of public broadcasting generally.”.
Subsection 111ba (3):
Omit the subsection, substitute the following subsections:
“(3) Nothing in subsection (2) shall be taken to prevent the holder of a public radio licence from broadcasting, in accordance with any applicable program standards:
(a) community information (whether by way of announcement, interview or otherwise);
(b) material which announces or promotes the service provided under the licence, including, without limiting the generality of this:
(i) material (whether by way of the announcement or promotion of activities, events, products or services or otherwise) likely to induce the public to support, whether financially or otherwise, or to make use of, the service provided under the licence; and
SCHEDULE 2—continued
(ii) material which announces or promotes a particular program or programs provided under the licence; or (c) a sponsorship announcement.
“(3a) For the purpose of determining whether information is community information for the purposes of paragraph (3) (a), regard shall be had to whether the holder of the licence received, or is to receive, payment or other consideration for broadcasting the information.
“(3b) For the purposes of paragraph (3) (c), a sponsorship announcement:
(a) shall not promote activities, events, products, services or programs other than activities, events, products, services or programs referred to in paragraph (3) (b);
(b) may acknowledge the support, whether financial or otherwise, of a person or persons:
(i) in respect of a particular program or programs provided under the licence; or
(ii) generally in respect of the service provided under the licence; and
(c) may specify the name and address of, and a concise description of the general nature of any business undertaking or activity carried on by, the person or those persons.”.
New Division:
After section 111bd insert the following Division in Part IVa:
“Division 2—Ownership and Control of Public Licences
Interpretation
“111be. (1) In this Division:
‘control’ includes direct or indirect control and control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
“(2) For the purposes of this Act, a person shall be deemed to be in a position to exercise control of a public broadcasting licence or public television licence if the person is:
(a) in a position to exercise control of the corporation that holds the licence; or
(b) in a position to exercise control of the operations conducted under or by virtue of the licence, the management of the station in respect of which the licence is in force or the selection or provision of the programs to be broadcast or televised by that station.
“(3) For the purposes of this Act, a person shall be deemed (but not to the exclusion of any other person) to be in a position to exercise control of
SCHEDULE 2—continued
a corporation if the person is, in the opinion of the Tribunal, in a position to exercise control of the corporation.
“(4) Paragraph (2) (b) does not apply to a person in relation to a public broadcasting licence or public television licence:
(a) in the case of an advertiser or other person sponsoring a program or programs under an agreement made in the ordinary course of business—by reason only of the person’s rights in respect of that program or those programs or of the fact that the person has, under a contract relating to the person’s sponsorship of that program or those programs, rights that are reasonably necessary to ensure to the person the full commercial benefit of that sponsorship; or
(b) in the case of a person carrying on the business of supplying programs—by reason only of the person’s rights under a contract for the supply by the person of programs to be broadcast or televised pursuant to the licence, being rights created in good faith in the ordinary course of that business for the purpose only of protecting the person’s commercial interests as a supplier of programs.
Ownership and control of public licences
“111bf. The ownership and control of public broadcasting licences and public radio licences is governed by subsections 86(11e), 88 (1a) and 89b (2) and (3) and section 111bg.
Changes to constituent documents
“111bg. A public broadcasting licence or public radio licence is subject to a condition that the corporation holding a licence will give the Tribunal notice in writing of any change to the constituent documents of the corporation within 28 days after the day on which the change takes effect.”.
NOTES
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. 00 and 00, 1987.
2. No. 27, 1918, as amended. For previous amendments, see No. 31, 1919; No. 14, 1921; No. 14, 1922; No. 10, 1924; No. 20, 1925; No. 17, 1928; No. 2, 1929; No. 9, 1934; No. 19, 1940; No. 42, 1946; No. 17, 1948; Nos. 10 and 47, 1949; No. 106, 1952; No. 79, 1953; No. 26, 1961; No. 31, 1962; Nos. 48 and 70, 1965; Nos. 32 and 93, 1966; No. 7, 1973; No. 216, 1973 (as amended by No. 20, 1974); No. 38, 1974;
No. 56, 1975; Nos. 14 and 116, 1977; No. 19, 1979; Nos. 102 and 155, 1980; No. 176, 1981 (as amended by No. 26, 1982); No. 80, 1982; Nos. 39, 84 and 144, 1983; Nos. 45, 46, 120 and 133, 1984; Nos. 67, 166 and 193, 1985; and No. 35, 1987.
3. No. 66, 1985, as amended. For previous amendments, see No. 191, 1985; and Nos. 68 and 79, 1987.
[Minister’s second reading speech made in—
Senate on 23 October 1987
House of Representatives on 10 December 1987]