1997

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 SENATE

COMMUNICATIONS LEGISLATION AMENDMENT BILL (No. 1) 1997

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Communications and the Arts,
Senator the Hon Richard Alston)

88631  Cat. No. 96 9056 5  ISBN 0644 503505

COMMUNICATIONS LEGISLATION AMENDMENT BILL (No. 1) 1997

OUTLINE

The Communications Legislation Amendment Bill (No. 1) 1997 (the Bill) amends the Broadcasting Services Act 1992 (the Broadcasting Services Act) to create a new class of licence - the temporary community broadcasting licence.  This Bill also makes consequential amendments to the Radiocommunications Act 1992 (the Radiocommunications Act) to allow the Australian Communications Authority (the ACA) to issue transmitter licences to temporary community broadcasting licensees.  

Groups seeking long-term community broadcasting licences under Part 6 of the Broadcasting Services Act (community broadcasting aspirants) have been providing community broadcasting services under the open narrowcasting class licence determined under section 117 of the Broadcasting Services Act by the Australian Broadcasting Authority (the ABA).  Those arrangements do not, however, allow community broadcasting aspirants to provide continuous transmissions and do not enable regulation appropriate to providers of community broadcasting services.  The new temporary community broadcasting licence will overcome these difficulties by establishing a licensing regime which regulates the community broadcasting services to be provided by licensees.  

A temporary community broadcasting licence will authorise the licensee to provide a community broadcasting service in a designated area for a maximum period of 12 months.

Services provided under a temporary community broadcasting licence will be community broadcasting services and as such must:
•	be provided for community purposes;
•	not be operated for profit;
•	be capable of being received by commonly available equipment; and
•	be made available free to the general public.

The statutory licence conditions, programming rules, and remedial and enforcement mechanisms to apply to temporary community broadcasting licensees are, so far as possible given the temporary nature of the temporary community broadcasting licence, the same as those applying to long-term community broadcasting licensees allocated licences under Part 6 of the Broadcasting Services Act.

The ABA will have the power to determine timing conditions to apply to a temporary community broadcasting licence, that is, the ABA will be able to determine the times and days during which the licensee may provide community broadcasting services during the licence period.  This will allow the ABA to share available spectrum between community broadcasting aspirants, for example, where there is insufficient spectrum available for each aspirant to provide a full-time service.
The ABA will be empowered to allocate temporary community broadcasting licences without having completed a Licence Area Plan (LAP) under section 26 of the Broadcasting Services Act.  This will allow community broadcasting aspirants to apply to provide continuous transmissions before licence area planning is complete and long-term community broadcasting licences are allocated under Part 6 of the Broadcasting Services Act.

The ABA will also be able to allocate temporary community broadcasting licences in an area after a LAP has been completed for that area.  This is to ensure that, where spectrum is available for a period for the provision of community broadcasting services additional to those specified in the particular LAP, community broadcasting aspirants can apply to provide continuous transmissions.

Temporary community broadcasting licences will promote the development of community broadcasting aspirants and allow the ABA to monitor their performance for the purpose of allocating long-term community broadcasting licences under Part 6 of the Broadcasting Services Act.  However, it will not be necessary for applicants for long-term community broadcasting licences to have held a temporary community broadcasting licence.

The amendments to the Radiocommunications Act will allow the ACA to issue transmitter licences to temporary community broadcasting licensees.  These transmitter licences will authorise the use of one or more transmitters to provide a community broadcasting service in accordance with a temporary community broadcasting licence.

The conditions to apply to these transmitter licences are, so far as possible given the temporary nature of the temporary community broadcasting licence, the same as those that apply to holders of other broadcasting services bands licences, including long-term community broadcasting licences, who are issued transmitter licences by the ACA.  

FINANCIAL IMPACT STATEMENT

The proposed amendments are expected to have no significant impact on Commonwealth expenditure or revenue.

NOTES ON CLAUSES

COMMUNICATIONS LEGISLATION AMENDMENT BILL (No. 1) 1997

Clause 1 - Short title

This clause provides for the citation of the amending Act.

Clause 2 - Commencement

This clause provides for the amending Act to commence 28 days after Royal Assent.  This provision is intended to ensure that the ABA and the ACA have sufficient time to make administrative arrangements for the exercise of the new powers conferred on them by the amendments in this Bill (see explanatory notes on item 7 in Schedule 1 and item 3 in Schedule 2 respectively). 

Clause 3 - Schedule(s)

This clause makes the amendments set out in the Schedules to the Acts specified in the Schedules and gives force to the other provisions in the Schedules.

The amendments to the Broadcasting Services Act are set out in Schedule 1, and the amendments to the Radiocommunications Act are set out in Schedule 2.

SCHEDULE 1 - AMENDMENT OF THE BROADCASTING SERVICES ACT 1992

Item 1 - Subsection 6(1) (definition of licence area)

The term “licence area” is defined in subsection 6(1) of the Broadcasting Services Act to mean an area designated by the ABA under section 29 or 40.

This item amends this definition to define the term “licence area” to mean an area designated by the ABA under section 29, 40 or 92G.  New section 92G requires the ABA, before allocating a temporary community broadcasting licence, to designate a particular area in Australia as the licence area of the licence (see explanatory notes on item 7 of Schedule 1).

Item 2 - Subsection 6(1)

This item inserts a definition of the term “temporary community broadcasting licence” into the Broadcasting Services Act.  “Temporary community broadcasting licence” is defined to mean a community broadcasting licence that is a broadcasting services bands licence and is allocated under Part 6A (see explanatory notes on item 7 of Schedule 1). 

“Community broadcasting licence” is defined in subsection 6(1) to mean a licence to provide a community broadcasting service that provides radio or television programs.

This Bill amends the Broadcasting Services Act to create a second kind of community broadcasting licence - the temporary community broadcasting licence.  The temporary community broadcasting licence is to be allocated under new Part 6A of the Broadcasting Services Act inserted by this Bill (see explanatory notes to item 7 of Schedule 1).  

A temporary community broadcasting licence will authorise the provision of a community broadcasting service using the broadcasting services bands.  “Broadcasting services bands” is defined in subsection 6(1) to mean that part of the radiofrequency spectrum that is designated under section 31 of the Radiocommunications Act as being primarily for broadcasting purposes and that is assigned by the Minister under that Act to the ABA for planning.  

Item 3 - Subsection 29(1) 

Part 3 of the Broadcasting Services Act provides for the planning and management of the broadcasting services bands.

Section 26 of the Broadcasting Services Act requires the ABA to prepare in writing LAPs that determine the number and characteristics of broadcasting services that are to be available in particular areas of Australia using the broadcasting services bands.

Subsection 29(1) requires the ABA to designate one of the areas referred to in section 26 as the licence area of the licence before allocating a new commercial television broadcasting licence, commercial radio broadcasting licence, or community broadcasting licence that is a broadcasting services bands licence.

This item amends subsection 29(1) so that the ABA is not required to designate a licence area referred to in section 26 as the licence area of a temporary community broadcasting licence before such a licence is allocated.  As a result, the ABA will be able to allocate a temporary community broadcasting licence to apply to an area before a LAP is completed for that area.

A temporary community broadcasting licence will have a licence area designated under new section 92G but such a designation does not require the preparation of a LAP or that the area designated be the same as that in a LAP or a proposed LAP (see explanatory notes on item 7 of Schedule 1).

Item 4 - At the end of paragraph 31(1)(b)

Subsection 31(1) empowers the Minister to notify the ABA in writing that capacity in the broadcasting services bands is to be reserved for a specified number of national broadcasting services and community broadcasting services.  This item amends that subsection so that the Minister does not have the power to notify the ABA that capacity is to be reserved for community broadcasting services to be provided by temporary community broadcasting licensees.  Reservation of capacity for temporary community broadcasting licences is inappropriate given the temporary nature of the licence.

Item 5 - After paragraph 34(1)(e)

Subsection 34(1) allows the ABA to decide, in certain prescribed circumstances, that parts of the broadcasting services bands spectrum are available for allocation for a period for certain specified purposes.  This item amends subsection 34(1) to provide an additional purpose.  The ABA will be able to decide that part or parts of the broadcasting bands spectrum is available for a period for allocation to temporary community broadcasting licensees.  It is not intended that the amendments made by this Bill should prevent a person providing community broadcasting services under the open narrowcasting class licence determined by the ABA under section 117. 

Item 6 - After section 79

This item inserts an application provision into Part 6 of the Broadcasting Services Act.  New section 79A provides that Part 6 does not apply to community broadcasting licences that are temporary community broadcasting licences.  It is intended that Part 6 refer only to long-term community broadcasting licences allocated under that Part, and not to temporary community broadcasting licences allocated under new Part 6A.    

Item 7 - After Part 6

This item inserts a new Part 6A into the Broadcasting Services Act to provide for the allocation of temporary community broadcasting licences.

New section 92A

Section 92A defines terms used in new Part 6A.

“Timing conditions” is defined to mean the conditions of a temporary community broadcasting licence that:
a)	are about the times in which the licence allows community broadcasting services to be provided; and
b)	are determined by the ABA under paragraph 92G(1)(b) or varied by the ABA under section 92J.

The ABA will have the power to determine timing conditions to apply to a temporary community broadcasting licence, that is, the ABA will be able to determine the times and days during which the licensee may provide community broadcasting services pursuant to the licence during the licence period (see explanatory notes on new section 92G below).

New section 92B

Section 92B provides that the ABA may allocate a temporary community broadcasting licence on application in writing, and for the ABA to decide the form of application. 
New section 92C

Section 92C imposes limits on the kinds of persons who may be allocated temporary community broadcasting licences.  The limits in subsections (1) and (2) are the same as those imposed in respect of community broadcasting licences allocated under Part 6 of the Broadcasting Services Act.  Subsection 92C(3) allows the ABA to refuse to allocate a temporary community broadcasting licence to an applicant if the applicant has held a temporary community broadcasting licence previously but did not provide community broadcasting services during the licence period.  This subsection is intended to allow the use of spectrum that is available for allocation to temporary community broadcasting licensees to be maximised, by making it clear that the ABA may refuse to allocate a licence to an applicant who has previously been unable to supply a service, despite being licensed to do so.

New section 92D

Section 92D sets out the manner in which, and the factors by reference to which, the ABA is to determine the suitability of temporary community broadcasting licensees or applicants for temporary community broadcasting licences.  This section is equivalent to section 83 of the Broadcasting Services Act, which deals with the determination of the suitability of community broadcasting licensees and applicants for community broadcasting licences under Part 6 of the Broadcasting Services Act.  The ABA is not required to consider the suitability of each applicant for a temporary community broadcasting licence but may do so in any particular instance.

New section 92E

Subsection 92E(1) specifies two matters that the ABA may have regard to in deciding whether to allocate a temporary community broadcasting licence.  Paragraph (a) provides that the ABA may have regard to the undesirability of one person being in a position to exercise control of more than one community broadcasting licence that is a broadcasting services bands licence in the same licence area.  This paragraph is intended to encourage a broad range of interests to be provided for by the community broadcasting services in a particular licence area.  Paragraph (b) provides that the ABA may have regard to the undesirability of the Commonwealth, a State or a Territory or a political party being in a position to exercise control of a temporary community broadcasting licence.  This is intended to prevent temporary community broadcasting licences being used for political purposes by political interests or parties.

Subsection 92E(2) specifies four factors that the ABA is not to have regard to.  These are:
a)	the extent to which the proposed service would meet the existing and perceived future needs of the community within the licence area of the proposed licence;
b)	the nature and diversity of the interests of that community;
c)	the nature and diversity of other broadcasting services (including national broadcasting services) available within that licence area; and
d)	the capacity of the applicant to provide the proposed service.
Unlike long-term community broadcasting licences allocated under Part 6 of the Broadcasting Services Act, it is not intended that the ABA conduct inquiries into the relative merits of applicants and their proposals, or the nature of the community in the proposed licence area, when deciding whether to allocate a temporary community broadcasting licence.  For example, the ABA is not to compare the capacity of competing applicants to provide a community broadcasting service.  This is to promote the function of temporary community broadcasting licences to allow community broadcasting aspirants to develop and to allow the ABA to monitor their performance for the purpose of allocating long-term broadcasting licences under Part 6 of the Broadcasting Services Act.  However, it will not be necessary for applicants for long-term community broadcasting licences to have held a temporary community broadcasting licence.  Any requirement to have regard to to the matters listed in subsection 92E(2) would also be likely to result in delays in the allocation of temporary community broadcasting licences.

New section 92F

This section prohibits the allocation of a temporary community broadcasting licence other than in accordance with a decision of the ABA under section 34.  Before the ABA allocates a temporary community broadcasting licence, it must have decided that spectrum is available under section 34 for allocation to temporary community broadcasting licensees (see explanatory notes to item 5 of Schedule 1).

New section 92G

This section requires the ABA, before it allocates a temporary community broadcasting licence, to:
a)	designate a particular area in Australia as the licence area of the licence;
b)	determine the timing conditions of the licence; and
c)	determine a period of up to 12 months as the licence period.

A temporary community broadcasting licence will have a licence area designated under this section but such a designation does not require the preparation of a LAP or that the area designated be the same as a LAP or a proposed LAP (see explanatory notes on item 3 of Schedule 1).

The ABA will have the power to determine timing conditions to apply to a temporary community broadcasting licence, that is, the ABA will be able to determine the times and days during which the licensee may provide community broadcasting services pursuant to the licence during the licence period.  This will allow the ABA to share available spectrum between community broadcasting aspirants, for example, where there is insufficient spectrum available for each aspirant to provide a full-time service.

The ABA may determine the licence period of the temporary community broadcasting licence, but this period is not to exceed 12 months, whether timing conditions allow continuous broadcasting during the licence period or not.

New section 92H

This section sets out the conditions that will apply to each temporary community broadcasting licence.  These are:
a)	the conditions set out in Part 5 (other than paragraph 9(1)(h)) of Schedule 2 to the Broadcasting Services Act;
b)	the timing conditions; and
c)	such other conditions as are imposed under section 92J.

The conditions in Part 5 of Schedule 2 to the Broadcasting Services Act are the standard conditions that apply to long-term community broadcasting licences allocated under Part 6.  These conditions relate to such matters as programming rules, advertisement and sponsorship restrictions, continued representation of the relevant community interest and encouragement of community participation in the provision of the service provided under the licence.  The condition in paragraph 9(1)(h) of Part 5 of Schedule 2 requires long-term community broadcasting licensees to commence the provision of a service within one year of being allocated a licence.  This condition will not apply to temporary community broadcasting licensees as the maximum period of the licence is to be 12 months.

The ABA will have the power to determine timing conditions to apply to a temporary community broadcasting licence (see explanatory notes on new section 92G above).  These timing conditions will be conditions on the licence, as will any conditions imposed under section 92J (see explanatory notes on new section 92J below).

New section 92J

This section allows the ABA to impose an additional condition on a temporary community broadcasting licence, vary or revoke any such additional condition that has been imposed, vary or revoke timing conditions, and vary the licence period.  However, the ABA may not vary or revoke a timing condition so that there are no times in which a temporary community broadcasting licence allows community broadcasting services to be provided, or vary the licence period so that the period is longer than 12 months.  

New section 92K

This section provides that a temporary community broadcasting licence remains in force for the licence period, to be determined by the ABA under paragraph 92G(1)(c), or varied under section 92J (see explanatory notes on new sections 92G and 92J above).  It is intended that a temporary community broadcasting licence will remain in force for the entire length of the licence period, irrespective of any timing conditions that may restrict the hours and/or days during which broadcasting is permitted under the licence.  This is to ensure that if a temporary community broadcasting licensee provides broadcasting services under the licence outside these timing conditions, this will be a breach of the licence conditions to which Division 3 of Part 10 of the Broadcasting Services Act applies, rather than the offence of unlicensed broadcasting under Division 1 of Part 10.
New section 92L

This section provides that a temporary community broadcasting licensee may surrender the licence by notice in writing given to the ABA.  However, temporary community broadcasting licences are not to be transferred.

Item 8 - Subsection 139(4)

This item amends subsection 139(4) of the Broadcasting Services Act so that this subsection does not apply to temporary community broadcasting licensees.  This amendment is consequential on the amendment in item 9 of Schedule 1 (see explanatory notes on item 9 below).

Item 9 - After subsection 139(4)

Section 139 of the Broadcasting Services Act creates offences relating to breaches of conditions of licences and class licences.  Subsection 139(4) provides that a community broadcasting service licensee who breaches a condition of the licence set out in subclause 9(1) of Schedule 2 of the Broadcasting Services Act is guilty of an offence and subject to a fine of 50 penalty units.

This item inserts a new offence provision relating to temporary community broadcasting licensees.  This provision mirrors that in subsection 139(4) relating to long-term community broadcasting licences, but reflects the fact that the condition in paragraph 9(1)(h) will not apply to temporary community broadcasting licensees (see explanatory notes on new section 92H, item 7 of Schedule 1).  New subsection 139(4A) provides that a temporary community broadcasting licensee who breaches a condition of the licence set out in subclause 9(1) (other than paragraph 9(1)(h)) of Schedule 2 of the Broadcasting Services Act is guilty of an offence and subject to a fine of 50 penalty units.

Subsection 139(4) of the Broadcasting Services Act is amended as a consequence to the amendment in this item, so that the offence in that subsection applies only to long-term community broadcasting licensees.

Item 10 - Section 204 (after the table item that relates to subsection 87(1))

Section 204 of the Broadcasting Services Act sets out a table of decisions in respect of which appeals on the merits may be made to the Administrative Appeals Tribunal (AAT).  The decisions which are subject to appeal to the AAT by long-term community broadcasting licensees who are allocated a licence under Part 6 of the Broadcasting Services Act are:
•	a decision by the ABA under subsection 83(2) that a person is not a suitable applicant or licensee; and
•	a decision by the ABA to vary licence conditions or impose new conditions under subsection 87(1).

This item amends section 204 to extend the range of decisions in respect of which an appeal on the merits may be made to the AAT, to include an appeal by a temporary community broadcasting licensee against the following decisions which may be made under proposed Part 6A of the Broadcasting Services Act (see explanatory notes on Item 7 of Schedule 1):
•	a decision by the ABA that a person is not a suitable licensee or applicant under new subsection 92D(2)); and
•	a decision by the ABA to vary licence conditions (other than timing conditions), impose new conditions or vary the licence period under new section 92(J).
As these decisions may adversely affect the interests of applicants and licensees, it is appropriate that they be subject to review by the AAT.  The decision to refuse to allocate a temporary community broadcasting licence, like the decision to refuse to allocate a long-term community broadcasting licence allocated under Part 6, is not subject to appeal to the AAT as it is a decision about the allocation of a finite public resource.  For the same reason, the decision to impose timing conditions on temporary community broadcasting licensees under new section 92G is not reviewable.

Item 11 - Paragraph 18(2)(c) of Schedule 3

Clause 18 of Schedule 3 to the Broadcasting Services Act allows the ABA to delegate any of its powers, other than those listed in subclause (2), to a member, an associate member or a member of staff of the ABA.  Paragraph 18(2)(c) provides that the ABA is not to delegate the power to impose, vary or revoke a condition on a licence.  

This item amends paragraph 18(2)(c) so that the power to impose, vary or revoke a timing condition on a temporary community broadcasting licence may be delegated by the ABA.  However, the power to impose, vary or revoke additional conditions other than timing conditions is not to be delegated.

SCHEDULE 2 - AMENDMENT OF THE RADIOCOMMUNICATIONS ACT 1992

Item 1 - Section 5

This item defines the terms “community broadcasting service” and “temporary community broadcasting licence” to have the same meaning as in the Broadcasting Services Act.  This is to ensure that the provisions inserted by this Bill into the Radiocommunications Act apply only to temporary community broadcasting licences provided for by new Part 6A of the Broadcasting Services Act (see explanatory notes on item 7 of Schedule 1).

Item 2 - After subsection 100(1)

New subsection 100(1A) defines the term “temporary community transmitter licence” for the purposes of this subsection as an apparatus licence that authorises operation of one or more radiocommunications transmitters for transmitting a community broadcasting service in accordance with a temporary community broadcasting licence.  
This subsection provides that the ACA must not issue a temporary community transmitter licence except under section 101A of the Radiocommunications Act.  The ACA will not have the power to issue a transmitter licence for the transmission of a community broadcasting service in accordance with a temporary community broadcasting licence under sections 100 or 102 of the Radiocommunications Act.

Item 3 - After section 101

This item inserts new section 101A into the Radiocommunications Act.

New subsection 101A(1)

This subsection confers a discretionary power on the ACA to issue a transmitter licence under this section to a person if, and only if, the person has been allocated a temporary community broadcasting licence under new Part 6A of the Broadcasting Services Act (see explanatory notes on item 7 of Schedule 1).  The licence authorises the operation of one or more specified radiocommunications transmitters for transmitting the community broadcasting service in accordance with the related licence.

New subsection 101A(2)

This item provides that subsections 100(4) to (8) of the Radiocommunications Act apply for the purposes of new section 101A.  Those subsections deal with matters of general application that are relevant to licences issued under new section 101A.

Subsection 100(4) provides that, in deciding whether to issue an apparatus licence (that is, a transmitter or a receiver licence) the ACA must have regard to all matters that it considers relevant and, without limiting this, the effect on radiocommunications of the proposed operation of the devices that would be authorised under the licence.   

Subsection 100(4A) makes it clear that, in deciding whether to issue an apparatus licence, the ACA may have regard to a frequency assignment certificate which states that the operation of a device under the licence will not cause an unacceptable level of interference to the operation of radiocommunications.

Subsection 100(4B) confers power on the ACA to determine, by written instrument, what are unacceptable levels of interference for the purposes of section 100, and by application, new section 101A.

Subsection 100(5) makes it clear that, in deciding whether to issue an apparatus licence, the ACA may also have regard to whether, in the two years before the application, the applicant has been the holder of an apparatus licence that has been cancelled.

Subsection 100(6) sets out the following additional matters that the ACA must have regard to in deciding whether to issue a transmitter licence:

a)	whether the applicant or certain other persons are qualified operators in relation to the licence; and
b)	whether the ACA is satisfied that the proposed operation of the transmitters is not reasonably likely to cause death or injury to persons, or loss of, or damage to, property.

Subsection 100(7) requires the ACA, if it refuses to issue the licence, to give the applicant written notice of the refusal, together with a statement of its reasons.

Subsection 100(8) makes it clear that more than one apparatus licence may be included in the same instrument.

Item 4 - Subsections 103(2) and 103(4)

Section 103 of the Radiocommunications Act provides for the duration of apparatus licences issued by the ACA under that Act.

This item makes consequential amendments to subsections 103(2) and 103(4) so that transmitter licences issued under new section 101A to temporary community broadcasting licensees continue in force only while the related temporary community broadcasting licence is in force and do not have effect while the related temporary community broadcasting licence is suspended.  

Item 5 - At the end of subsection 106(1)

Subsection 106(1) of the Radiocommunications Act provides for the ACA to determine price-based allocation systems for issuing specified transmitter licences. 

This item amends that subsection so that the ACA will not be able to determine a price-based allocation system for issuing transmitter licences under new section 101A.  A price-based allocation system for transmitter licences authorising the operation of transmitters for providing a community broadcasting service under a temporary community broadcasting licence is inappropriate, as this would conflict with the aim of the temporary community broadcasting licence regime to maximise access to the broadcasting services bands spectrum.

Item 6 - Subsections 107(3) and 108(5)

Section 107 of the Radiocommunications Act sets out conditions to apply to apparatus licences, and section 108 sets out additional conditions to apply to transmitter licences.  Subsections 107(3) and 108(5) provide that these sections do not apply to transmitter licences issued under section 102.

This item amends those subsections so that those sections also do not apply to transmitter licences issued under new section 101A.  This amendment is consequential to the amendments in item 7 of Schedule 2.  That item inserts new section 108A which sets out the conditions to apply to transmitter licences issued under new section 101A (see explanatory notes on item 7 of Schedule 2 below).
Item 7 - After section 108

This item inserts new section 108A into the Radiocommunications Act.  

New subsection 108A(1) 

This subsection sets out the standard conditions to apply to transmitter licences issued under new section 101A.  These conditions broadly reflect the conditions that apply to transmitter licences issued under section 102 to holders of commercial radio and television broadcasting licences and long-term community broadcasting licences allocated by the ABA.  Paragraph (1)(e) provides that a transmitter licence issued under section 101A is subject to such conditions (if any) as the ACA determines, by written instrument, in relation to licences issued under new section 101A.  This allows the ACA to make a determination that certain specified conditions are to apply to all transmitter licences issued under new section 101A.  Paragraph (1)(f) provides that a transmitter licence issued under new section 101A is subject to such conditions as are specified in the licence.  This allows the ACA to specify on a transmitter licence conditions that are to apply to that licence.

New subsection  108A(2) 

This subsection provides that the conditions of the licence must not be inconsistent with the related licence referred to in section 101A, that is, the temporary community broadcasting licence.

New subsection  108A(3) 

This subsection provides that a determination under paragraph 108A(1)(e) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Item 8 - Section 110 and paragraph 111(1)(c) 

The amendments made by this item are consequential to the amendment in item 7 (see explanatory notes to item 7 of Schedule 2 above).

Section 110 specifies some of the conditions that may be specified in an apparatus licence under paragraph 107(1)(g) or 109(1)(f).  The conditions specified relate to minimisation of interference for licences issued under section 100 and section 102 respectively.  

This item amends section 110 to make it clear that conditions that may be specified under new paragraph 108A(1)(f) in a transmitter licence issued under new section 101A may include the conditions specified in section 110 that relate to the minimisation of interference.

Section 111 allows the ACA to impose further conditions,  or to vary or revoke certain specified licence conditions.

This item amends paragraph 111(1)(c) so that the ACA may vary or revoke any condition specified under new paragraph 108A(1)(f) to apply to transmitter licences issued under new section 101A.

Item 9 - Paragraph 111(1)(d) and subsections 125(2) and 129(1)

This item makes consequential amendments to the sections specified.

Section 111 allows the ACA to impose further conditions, or to vary or revoke certain specified licence conditions.  Paragraph 111(1)(d) allows the ACA, if the licence is a transmitter licence other than a licence issued under section 102, to vary or revoke any condition of the kind referred to in paragraphs 108(2)(a), (b) or (c).  Section 108 contains conditions that do not apply to transmitter licences issued under section 102, and as a result of the amendment to section 108 made by item 6, will not apply to transmitter licences issued under new section 101A.  This item amends paragraph 111(1)(d) so that the power in paragraph 111(1)(d) to vary or revoke conditions of the kind referred to in paragraphs 108(2)(a), (b) or (c) does not apply to transmitter licences issued under new section 101A.

Division 6 of Part 3.3 of the Radiocommunications Act provides for the suspension and cancellation of apparatus licences in certain circumstances.  Subsection 125(2) provides that this Division does not apply to transmitter licences issued under section 102.  

This item amends that subsection so that transmitter licences issued under new section 101A are also excluded from the operation of the Division.  Transmitter licences issued under new subsection 101A, like transmitter licences issued under section 102, are to remain in force while the related broadcasting services bands licence is in force and do not have effect while that licence is suspended (see explanatory notes on item 4 of Schedule 2).  Part 10 of the Broadcasting Services Act, as amended by items 8 and 9 of Schedule 1, will provide for remedies for breaches of licensing provisions by temporary community broadcasting licensees (see explanatory notes on items 8 and 9   of Schedule 1). 

Division 7 of Part 3.3 of the Radiocommunications Act provides for renewal of apparatus licences.  Subsection 129(1) allows apparatus licensees, other than a person holding a transmitter licence issued under section 102, to apply for the licence to be renewed.  This item amends subsection 129(1) so that holders of a transmitter licence issued under new section 101A are also excluded from applying for the licence to be renewed.

Item 10 - Paragraph 238(3)(c)

Section 238 of the Radiocommunications Act provides for delegation of the ACA’s powers.

Subsection 238(3) allows certain powers of the ACA to be delegated to the ABA, including in paragraph (a) the power to issue, renew, suspend or cancel licences authorising operation of radiocommunications devices using a part of the spectrum designated under section 31.  This provision will allow the ACA to delegate its power to issue transmitter licences under new section 101A to temporary community broadcasting licensees to the ABA. 

Paragraph 238(3)(c) allows the ACA’s power to vary or revoke certain specified conditions on apparatus licences to be delegated to the ABA.  This item amends that paragraph to allow the ACA’s power in new paragraph 108A(1)(f) to be delegated to the ABA.

Item 11 - After paragraph 285(e)

Part 5.6 of the Radiocommunications Act deals with review of decisions made by the ACA under the Radiocommunications Act.  Section 285 sets out the decisions which are subject to reconsideration by the ACA on application.  Section 292 provides that applications may be made to the AAT to review a decision of the kind referred to in section 285 if the ACA has affirmed or varied the decision.  

This item inserts new paragraph (ea) into section 285 so that a decision by the ACA to refuse to issue a transmitter licence under new section 101A is subject, on application, to reconsideration by the ACA and appeal to the AAT.

Item 12 - Paragraph 285(f)

As noted above, section 285 sets out the decisions which are subject to reconsideration by the ACA on application and section 292 provides that applications may be made to the AAT to review those decisions if the ACA has affirmed or varied the decision (see explanatory notes on item 11 of Schedule 2 above).  Paragraph 285(f) provides that application can be made to the ACA for reconsideration of the decision to include certain specified conditions in an apparatus licence.  This item amends that paragraph so that conditions specified under new paragraph 108A(1)(f) and included in a transmitter licence issued under new section 101A can be reconsidered on application.