Broadcasting Amendment Act (No. 2) 1991
No. 183 of 1991
An Act to amend the Broadcasting Act 1942,
and for related purposes
[Assented to 6 December 1991]
The Parliament of Australia enacts:
PART 1—PRELIMINARY
Short title etc.
1.(1) This Act may be cited as the Broadcasting Amendment Act (No. 2) 1991.
(2) In this Act, "Principal Act" means the Broadcasting Act 19421.
Commencement
2.(1) Subject to subsection (2), this Act commences 28 days after the day on which it receives the Royal Assent.
(2) Sections 19, 20 and 21 commence on 31 December 1992.
PART 2—AMENDMENTS OF THE PRINCIPAL ACT
Interpretation
3. Section 4 of the Principal Act is amended by omitting from subsection (15) all the words after "prescribed".
Interpretation
4. Section 80 of the Principal Act is amended by inserting in subsection (1) the following definitions:
" 'non-metropolitan AM commercial radio licence' means an AM commercial radio licence that is not in a large city or town;
'non-metropolitan FM commercial radio licence' means a commercial radio licence:
(a) whose licence warrant authorises very high frequency transmission; and
(b) whose service area is not a metropolitan service area;
'non-metropolitan supplementary radio licence' means a supplementary radio licence whose service area is not a metropolitan service area;".
5. After section 80A of the Principal Act the following section is inserted:
Whether service provided under a licence is commercially viable
"80B.(1) For the purposes of this Part, the service provided under a licence is commercially viable if, and only if, the Tribunal is satisfied that, on the balance of probabilities, the service will continue to be provided under that licence until the licence's expiration.
"(2) In considering whether it is so satisfied, the Tribunal must disregard:
(a) the effect (if any) of the need to comply with any conditions of the licence imposed under subsection 81(1) or 85(1); and
(b) the effect (if any) of the need to comply with any undertakings given to the Tribunal by the licensee, except an undertaking given under subsection 83(1) or 86(4).
"(3) For the purpose of subsection (1), the provision of the service under a licence is not to be taken to be discontinued because only of a suspension of the licence under this Act.".
Applications for grant of certain licences
6. Section 82 of the Principal Act is amended by adding at the end of subsection (1) the following word and paragraph:
"; and (d) if the licence is to be a non-metropolitan FM commercial radio licence—notifies interested persons of the requirements in relation to the FM access fee under this Act and the Radio Licence Fees Act 1964".
Repeal of section 82AA
7. Section 82AA of the Principal Act is repealed.
Applications for grant of supplementary radio licences
8. Section 82A of the Principal Act is amended by omitting paragraph (6)(a) and substituting the following paragraph:
"(a) where paragraph (4)(a) applies:
(i) of the matters set out in the notice mentioned in that paragraph; and
(ii) in the case of a licence that is to be a non-metropolitan supplementary radio licence—of the requirements under this Act and the Radio Licence Fees Act 1964 in relation to the FM access fee; or".
Simultaneous commercial radio licence and supplementary radio licence inquiries
9. Section 82AAA of the Principal Act is amended:
(a) by inserting in paragraph (2)(d) "subject to subsection (2A)," before "the Tribunal" (first occurring);
(b) by inserting after subsection (2) the following subsection:
"(2A) If:
(a) the Tribunal is simultaneously considering the application for the grant of a supplementary radio licence and applications for a commercial radio licence; and
(b) the service area of the supplementary radio licence overlaps that of the commercial radio licence; and
(c) the Tribunal determines under paragraph 83B(7)(c) that only one additional radio licence should be granted in relation to those areas;
the Tribunal must give preference to the applications for the commercial radio licence:
(d) by first considering the applications for the commercial radio licence; and
(e) if an applicant for the commercial radio licence is a suitable person to be granted that licence—by granting the commercial radio licence and not the supplementary radio licence.".
Criteria for grant of commercial licence
10. Section 83A of the Principal Act is amended:
(a) by omitting from subsection (1) ", (9) or (10)" and substituting "or (9)";
(b) by inserting in paragraph (4)(c) "subject to subsection (4A)," before "where";
(c) by adding at the end of subsection (4) the following paragraph:
"; (d) the policy that, whenever practicable, the number of broadcasting services provided to the public should be increased.";
(d) by inserting after subsection (4) the following subsection:
"(4A) If:
(a) the Tribunal is considering whether it is advisable in the public interest to grant a commercial radio licence; and
(b) the service area of that licence overlaps the service area of a non-limited licence;
the Tribunal is not to have regard to the need for the commercial viability of the service provided under that non-limited licence unless its holder satisfies the Tribunal that the service would not be commercially viable after the grant of the commercial radio licence.";
(e) by omitting from subsection (9) "Subject to subsection (10), where" and substituting "Where";
(f) by omitting subsections (10) and (11).
Criteria for grant of supplementary radio licence
11. Section 83B of the Principal Act is amended:
(a) by omitting paragraph (4)(b) and substituting the following paragraphs:
"(b) the need for the commercial viability of the service provided under a licence mentioned in subsection (4A) or (4B) if the Tribunal is required to do so under the subsection;
(c) the policy that, whenever practicable, the number of broadcasting services provided to the public should be increased.";
(b) by inserting after subsection (4) the following subsections:
"(4A) If:
(a) the Tribunal is considering whether it is advisable in the public interest to grant a supplementary radio licence; and
(b) the service area of that licence overlaps the service area of a non-limited licence; and
(c) at the same time, the Tribunal is also considering applications for the grant of a non-limited licence whose service area overlaps the service area of the supplementary radio licence;
the Tribunal is not to have regard to the need for the commercial viability of the service provided under the existing non-limited licence unless its holder satisfies the Tribunal that the service
would not be commercially viable after the grant of the supplementary radio licence.
"(4B) If:
(a) the Tribunal is considering whether it is advisable in the public interest to grant a supplementary radio licence to a person; and
(b) the service area of that licence overlaps the service area of a commercial radio licence; and
(c) paragraph (4A)(c) does not apply;
the Tribunal is not to have regard to the need for the commercial viability of the service provided under the commercial radio licence unless its holder satisfies the Tribunal that the service would not be commercially viable after the grant of the supplementary radio licence.";
(c) by adding at the end of subsection (6) "or (1A)";
(d) by omitting subsection (7) and substituting the following subsection:
"(7) The Tribunal must refuse to grant a supplementary radio licence if:
(a) when the Tribunal is considering the application for it, the Tribunal is also considering applications for the grant of a commercial radio licence in accordance with section 82AAA; and
(b) the service area of the commercial radio licence overlaps that of the supplementary radio licence; and
(c) the Tribunal determines that only one additional radio licence should be granted in relation to those areas; and
(d) the Tribunal decides to grant the commercial radio licence.";
(e) by omitting subsections (8), (9) and (10).
Minister may revise service specifications before grant of licence
12. Section 83F of the Principal Act is amended:
(a) by omitting paragraph (1)(d) and substituting the following paragraph:
"(d) this subsection or subsection (1A);";
(b) by inserting after subsection (1) the following subsection:
"(1A) If, before the grant of a supplementary radio licence:
(a) the Minister, on the Tribunal's recommendation, determines that the licence's service area is to be smaller than, but wholly within, the service area of a commercial radio licence to which it would be related; and
(b) no determination under this subsection has previously been made in relation to the supplementary radio licence;
the Minister must:
(c) revoke the service specifications determined in relation to the supplementary radio licence under subsection 82A(4) or subsection (1) of this section; and
(d) determine that new service specifications specified in the determination are the service specifications to which the supplementary radio licence is to be subject.";
(c) by omitting paragraph (2)(a) and substituting the following paragraph:
"(a) if the licence is a supplementary radio licence—whichever of the following provisions under which the specifications were last determined:
(i) subsection 82A(4);
(ii) subsection (1);
(iii) subsection (1A);";
(d) by inserting in subsection (3) "or (1A)" after "(1)".
13. After section 83F of the Principal Act the following sections are inserted:
FM access fee notices in relation to new non-metropolitan FM commercial radio licences
"83G. If the Tribunal grants (otherwise than by way of renewal) a non-metropolitan FM commercial radio licence to a person, it must give the person a written notice:
(a) specifying the amount of FM access fee in respect of the licence determined under section 6BA of the Radio Licence Fees Act 1964; and
(b) informing the person of the requirements under this Act and that Act in relation to the FM access fee.
FM access fee notices in relation to new non-metropolitan supplementary radio licences
"83H. If the Tribunal grants (otherwise than by way of renewal) a non-metropolitan supplementary radio licence to a person, it must give the person a written notice:
(a) specifying the amount of FM access fee in respect of the licence determined under section 6BA of the Radio Licence Fees Act 1964; and
(b) informing the person of the requirements under this Act and that Act in relation to the FM access fee.
FM access fee notices in relation to conversion to FM of non-metropolitan AM commercial radio licences
"83J. If the Minister converts to FM a non-metropolitan AM commercial radio licence, the Tribunal must give the holder of that licence a written notice:
(a) specifying the amount of FM access fee in respect of the licence determined under section 6BA of the Radio Licence Fees Act 1964; and
(b) informing the person of the requirements under this Act and that Act in relation to the FM access fee.
Payment of FM access fee to be made within 28 days etc.
"83K.(1) An amount of FM access fee imposed under section 6B of the Radio Licence Fees Act 1964 must be paid within 28 days beginning on the day of the issue of the notice mentioned in that section.
"(2) If a person who is liable to pay an amount of FM access fee fails to pay that amount by the end of that period, or at the end of that period as extended in accordance with this subsection, the Tribunal may:
(a) by written notice given to that person, extend or further extend that period; or
(b) if the Tribunal is satisfied that the person has unreasonably or repeatedly delayed paying that amount—exercise its power under subsection 88(4) or 88A(3), as the case requires.
"(3) If a commercial radio licence is revoked in accordance with subsection 88 (4) because of the licensee's failure to pay an FM access fee, the Tribunal may:
(a) grant the licence to another applicant for the licence:
(i) to whom the Tribunal would have been required to grant the licence but for subsection 83A (9); and
(ii) who is still available to be granted the licence; or
(b) recommend to the Minister that a fresh notice under subsection 82 (1) should be published in relation to the granting of that licence.".
Transfer of commercial licences
14. Section 89A of the Principal Act is amended:
(a) by omitting from subsection (1) "and (4)" and substituting ", (4) and (5A)";
(b) by omitting from subsection (4) all the words after "commercial licence", (third occurring) and substituting "within the period beginning from the grant of the licence and ending on the day that is 2 years after the day of the commencement of service provided under the licence.";
(c) by inserting after subsection (5) the following subsections:
"(5A) Without limiting subsection (4) or (10), if a commercial radio licence is related to a supplementary radio licence, the commercial radio licence must not be transferred by its licensee to a person within the period beginning from the grant of the
supplementary radio licence and ending on the day that is 2 years after the day of the commencement of service provided under the supplementary radio licence, unless the supplementary radio licence or, if the licensee is one of its co-owners, the whole of the licensee's interest in the supplementary radio licence, is also transferred to that person.
"(5B) For the purposes of subsections (4) and (5A), the day of the commencement of service provided under a licence is the day on which the service provided under the licence commences in accordance with a determination made under section 96.
"(5C) If:
(a) a commercial radio licence that is related to a supplementary radio licence is transferred to a person; and
(b) the supplementary radio licence, or if the licensee is a co-owner, the whole of the licensee's interest in the supplementary radio licence, is not also transferred to that person; and
(c) as a result, the supplementary radio licence is no longer related to a commercial radio licence;
the supplementary radio licence is, for the purposes of this Act, taken to be a commercial radio licence on and from the day of the transfer until its expiration.";
(d) by omitting subsection (10) and substituting the following subsection:
"(10) The Tribunal must refuse to give consent to the transfer of a commercial radio licence by its licensee to a person if:
(a) the licence is related to a supplementary radio licence; and
(b) the commercial radio licence's service area is not substantially the same as that of the supplementary radio licence; and
(c) the supplementary radio licence or, if the licensee is one of its co-owners, the whole of the licensee's interest in the supplementary radio licence, is not also transferred to that person.".
Transfer of supplementary radio licences
15. Section 89B of the Principal Act is amended:
(a) by omitting from subsection (3) "or (5)" and substituting ", (4A) or (5)";
(b) by inserting after subsection (4) the following subsection:
"(4A) The Tribunal must refuse to give consent to the transfer of a supplementary radio licence by its licensee to a person if:
(a) its service area is not substantially the same as that of the service area of the commercial radio licence of which the licensee is also the licensee and to which the supplementary radio licence is related; and
(b) the commercial radio licence is not also transferred to that person.";
(c) by omitting subsection (5) and substituting the following subsections:
"(5) Without limiting subsection (4A), the Tribunal must refuse to give consent to the transfer of a supplementary radio licence by its licensee to another person if the transfer occurs within the period beginning from the grant of the licence and ending on the day that is 2 years after the day of the commencement of service provided under the licence, unless the commercial radio licence of which the licensee is the licence holder and to which the licence is related is also transferred to the other person.
"(5A) For the purpose of subsection (5), the day of the commencement of service provided under a licence is the day on which service provided under the licence commences in accordance with a determination made under section 96.
"(5B) If:
(a) a supplementary radio licence is transferred to a person who is not the holder of a commercial radio licence that has a service area substantially the same as that of the supplementary radio licence; and
(b) a commercial radio licence to which the supplementary radio licence is related is not also transferred to that person;
the supplementary radio licence is, for the purposes of this Act, taken to be a commercial radio licence on and from the day of its transfer until its expiration.".
Licence warrants
16. Section 89D of the Principal Act is amended:
(a) by inserting after subsection (5) the following subsections:
"(5A) The holder of a non-metropolitan AM commercial radio licence may seek to convert that licence to FM by applying to the Minister, in writing, for the variation of the technical conditions of the licence warrant so as to authorise transmission by way of FM frequency.
"(5B) On receiving an application made under subsection
(5A), and after having regard to any representations made in accordance with subsection (8), the Minister may:
(a) exercise the Minister's power under subsection (6); or
(b) dismiss the application.";
(b) by inserting after subsection (6) the following subsection:
"(6A) If the Minister varies the technical conditions of a licence warrant on an application made under subsection (5A), the Minister must, by written notice, inform the Tribunal of the variation.";
(c) by adding at the end the following subsection:
"(9) If the Minister or an authorised officer gives a notice to a person under subsection (8) on that person's application under subsection (5A), the Minister or the officer must also, in that notice, inform the person of the requirements in relation to the FM access fee under this Act and the Radio Licence Fees Act 1964.".
Commencement of service
17. Section 96 of the Principal Act is amended by adding at the end the following subsection:
"(3) The Tribunal must not make a determination under this section in relation to the commencement of a service that is:
(a) provided under a licence in respect of which a notice has been given to a person under section 83G or 83H; or
(b) authorised by a licence warrant that has been varied under subsection 89D(6) and in respect of which a notice has been given to a person under section 83J;
unless the person has paid to the Commonwealth the amount of FM access fee specified in the notice.".
Special provisions relating to public licences
18. Section 119AB of the Principal Act is amended:
(a) by inserting in paragraph (3B)(a) "if the licence's service area overlaps a commercial radio licence's service area—" before "shall";
(b) by inserting after subsection (3B) the following subsection:
"(3C) The holder of a public licence whose service area does not overlap a commercial radio licence's service area may only broadcast sponsorship announcements that run in total for not more than 4 minutes per hour of broadcasting.".
Licensee to keep accounts etc.
19. Section 123 of the Principal Act is amended by omitting subsection (2) and substituting the following subsections:
"(2) A licensee may, with the leave of the Tribunal, adopt an accounting period which is a period of 12 months ending on a day other than 30 June.
"(2A) If a licensee adopts such an accounting period, the provisions in paragraphs (1)(c) and (1AA)(a) apply in relation to that licensee as if:
(a) references in those provisions to the 6 months after 30 June were references to:
(i) if the 6 months after the accounting period does not include 31 December—the 6 months after the end of the accounting period; or
(ii) if the 6 months after the accounting period includes 31 December—the period beginning immediately after the end of the accounting period and ending on that 31 December; and
(b) references in those provisions to the year ending on 30 June were references to the year ending on the last day of that accounting period.".
20. After section 123 of the Principal Act the following section is inserted:
Payment of licence fees
"123AA.(1) In this section:
'gross earnings' has the same meaning as in the Radio Licence Fees Act 1964 or the Television Licence Fees Act 1964;
'licence fee' means a fee imposed under:
(a) subsection 6(2) of the Radio Licence Fees Act 1964; or
(b) subsection 6(2) of the Television Licence Fees Act 1964;
'required method of calculation', in relation to the licence fee in respect of a licence, means the application of the appropriate formula specified in section 6 or 6A of the Radio Licence Fees Act 1964 or of the Television Licence Fees Act 1964 to calculate the amount of the fee, having regard to the gross earnings in respect of the licence during the period for which the licence fee is payable.
"(2) If the holder of a licence pays what the holder intends to be an amount of licence fee that is due and payable in respect of the licence, the licensee must give the Tribunal details, in a form approved by the Tribunal, of the licensee's calculation of the full amount of the licence fee using the required method of calculation for the fee.
"(3) If:
(a) the Tribunal calculates the full amount of the licence fee that is due and payable in respect of the licence using the required method of calculation for the fee, having regard to the documents given to it most recently under paragraph 123(1)(c) in respect of the licence; and
(b) that amount calculated is not the same as the amount paid;
the Tribunal must give the licensee, as soon as practicable, a written notice:
(c) specifying that amount calculated; and
(d) setting out details of the calculation; and
(e) if the amount paid exceeds that amount calculated, specifying the amount of the excess; and
(f) if the amount paid is less than that amount calculated, specifying the amount of licence fee unpaid according to the calculation; and
(g) if the Tribunal is satisfied that the licensee deliberately miscalculated the full amount of the licence fee—stating that it is so satisfied.
"(4) If an amount is specified in a notice because of paragraph (3)(e), the Tribunal must, within 21 days beginning on the day on which the notice was issued, cause that amount to be refunded to the licensee.".
Penalty for unpaid licence fees
21. Section 123A of the Principal Act is amended:
(a) by inserting in subsection (1) ", other than an amount of annual licence fee," after "licence fee";
(b) by inserting after subsection (1) the following subsections:
"(1A) If an amount of annual licence fee, other than an amount to which subsection (1B) applies, remains unpaid after the due date, an additional fee is due and payable by way of penalty by the holder of the licence at the rate of 20% per annum on the amount unpaid, computed from the due date.
"(1B) If an amount of annual licence fee specified in a notice under subsection 123AA(3) because of paragraph 123AA(3)(f) remains unpaid after the end of 21 days beginning on the day on which the notice was issued, an additional fee is due and payable by way of penalty by the holder of the licence at the rate of 20% per annum on the amount unpaid, computed from the day on which the notice was issued.
"(1C) If the notice contains a statement under paragraph 123AA(3)(g), subsection (1B) does not apply to the amount.";
(c) by omitting subsections (5) and (6);
(d) by inserting the following definitions in subsection (7):
" 'annual licence fee' means a fee imposed under:
(a) subsection 6 (2) of the Radio Licence Fees Act 1964; or
(b) subsection 6 (2) of the Television Licence Fees Act 1964;
'due date', in relation to a licence fee, means the day on which the fee becomes payable under a Fees Act;".
PART 3—AMENDMENTS OF THE BROADCASTING AND TELEVISION AMENDMENT ACT 1985
Amendments of the Broadcasting and Television Amendment Act 1985
22. Section 98 of the Broadcasting and Television Amendment Act 1985 is amended:
(a) by omitting paragraph (1) (c);
(b) by omitting from paragraph (1) (d) "or (c)";
(c) by omitting subsection (8).
PART 4—TRANSITIONAL AND SAVINGS ETC.
Transitional and savings etc.—commercial radio licences
23.(1) The amendments of the Principal Act made by sections 13 and 17 of this Act apply to the grant of a non-metropolitan FM commercial radio licence if:
(a) the licence was granted after the commencement of this section and subsection (2) does not apply to the licence; or
(b) subsection (4) applies to that licence.
(2) If:
(a) before 23 July 1991, the Tribunal notified a person under paragraph 83A(10)(a) or (c) of the Principal Act (as then in force) that a commercial radio licence is available to a person; and
(b) the relevant period in relation to that person, or that period as extended under subparagraph 83A(10)(d)(i), has not expired on the commencement of this section; and
(c) the person has not, at the time immediately before that commencement, paid to the Commonwealth the amount of establishment fee in respect of that licence;
the provisions in section 82AA and subsections 83A(10) and (11) of the Principal Act as in force immediately before that commencement are to continue to apply to the grant of that licence.
(3) Subsection (2) ceases to apply in relation to the grant of a licence when a fresh notice under subsection 82(1) is published in respect of that licence in accordance with the repealed subparagraph 83A(10)(d)(ii) of the Principal Act as in force under subsection (2).
(4) If:
(a) during the period beginning on 23 July 1991 and ending immediately before the commencement of this section, the Tribunal notified a person under paragraph 83A(10)(a) or (c) of the Principal Act (as then in force) that a non-metropolitan FM commercial radio licence is available to the person; and
(b) the relevant period in relation to that person, or that period as extended under subparagraph 83A(10)(d)(i), has not expired on that commencement; and
(c) the person has not, at the time immediately before that commencement, paid to the Commonwealth the amount of establishment fee in respect of that licence;
then, on and after that commencement:
(d) the notice published in relation to that licence under the repealed section 82AA of the Principal Act and the notice mentioned in paragraph (a) cease to have effect; and
(e) the Tribunal must grant the commercial radio licence to the person.
(5) If a commercial radio licence is granted to a person after the commencement of this section and subsection (2) does not apply to the licence, a notice published in relation to that licence before that commencement under the repealed section 82AA of the Principal Act ceases to have effect after that commencement.
(6) In this section, "establishment fee" and "relevant period" have the same meanings as in section 83A of the Principal Act as in force immediately before the commencement of this section.
Application—supplementary radio licence
24. The amendments of the Principal Act made by sections 13 and 17 of this Act do not apply to the grant of a non-metropolitan supplementary radio licence unless the application for that licence was referred to the Tribunal by the Minister under paragraph 82A(4)(a) on or after 23 July 1991.
Transitional and savings—FM conversion
25. (1) If, before the commencement of this section:
(a) the holder of a non-metropolitan commercial radio licence made a written application to the Minister to vary the technical conditions of the licence warrant in respect of that licence so as to authorise very high frequency transmission; and
(b) the Minister has not approved the variation under subsection 89D(6) of the Principal Act;
then on and after that commencement, the amendments of the Principal Act made by this Act apply to that application as if it were an application made under subsection 89D(5A) of the Principal Act.
(2) If the Minister converted to FM a non-metropolitan AM commercial radio licence under section 89D of the Principal Act before the commencement of this section:
(a) the provisions in section 123A of the Principal Act as in force at the time of the conversion continue to have force in relation to that conversion after that commencement; and
(b) the amendments of the Principal Act made by sections 13, 16 and 17 of this Act do not apply in relation to that conversion.
Savings—certain applications made under the Broadcasting and Television Act 1942
26. If:
(a) an application for the grant of a supplementary broadcasting licence was made under the Broadcasting and Television Act 1942 before 1 January 1986; and
(b) a licence has not been granted to the applicant in respect of that application before the commencement of this section;
the application is taken to be an application for the grant of a supplementary radio licence made under section 82A of the Principal Act on 1 January 1986.
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NOTE
1. No. 33, 1942, as amended. For previous amendments, see No. 39, 1946; No. 64, 1948; No. 80, 1950; No. 41, 1951; No. 12, 1953; No. 82, 1954; Nos. 33, 65 and 92, 1956; No. 36, 1960 (as amended by No. 32, 1961); No. 96, 1962; No. 82, 1963; Nos. 67 and 121, 1964; Nos. 38 and 120, 1965; No. 57, 1966; No. 47, 1967; No. 69, 1968; Nos. 21 and 31, 1969; Nos. 8, 72 and 136, 1971; No. 49, 1972; Nos. 50 and 216, 1973; 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; Nos. 68, 79, 80, 134 and 184, 1987; Nos. 56, 99, 109, 146 and 147, 1988; Nos. 29, 31 and 63, 1989; No. 23, 1990; and Nos. 7, 11, 99, 145 and 158, 1991.
[Minister's second reading speech made in—
House of Representatives on 6 November 1991
Senate on 26 November 1991]