Broadcasting and Television Amendment Act 1981 (Cth)

Broadcasting and Television Amendment Act 1981 No. 113 of 1981 TABLE OF PROVISIONS Section 1. Short title, &c. 2. Commencement 3. Interpretation 4. Evidence 5. Insertion of new sections— 22b. Reference of questions of law to Federal Court of Australia 22c. Documents to be sent to Federal Court of Australia 6. Notice of decision 7. Publication of journals, &c., and making, &c., of sound recordings, &c. 8. Limitation on contracts 9. Interpretation 10. Grant and renewal 11. Applications 12. Insertion of new section— 82a. Applications for supplementary licences and associated commercial translator licences 13. Consideration of applications by Tribunal 14. Imposition of conditions 15. Variation of conditions 16. Renewal 17. Insertion of new section — 86a. Renewal of certain supplementary licences 18. Suspension and revocation 19. Transfers 20. Service of documents 21. Tracing of shareholding interests through a series of companies 22. Limitation of interests in commercial broadcasting stations 23. Meaning of control of a company TABLE OF PROVISIONS—continued Section 24. Directors 25. Repeal of section 90g and substitution of new section— 90g. Foreign shareholdings, &c. 26. Changes in ownership of shares, &c. 27. Insertion of new section— 90ja. Approval of transactions 28. Repeal of section 90p and substitution of new section— 90p. Tribunal may seek information 29. Tracing of shareholding interests through a series of companies 30. Insertion of new sections— 91c. Registered lenders 91d. Approved investments 31. Limitation of interests in commercial television stations 32. Meaning of control of a company 33. Directors 34. Repeal of section 92d and substitution of new section— 92d. Foreign shareholdings, &c. 35. Changes in ownership of shares, &c. 36. Insertion of new sections— 92faa. Approval of transactions 92fab. Certain transactions to require prior approval 37. Repeal of section 92ja and substitution of new section— 92ja. Tribunal may seek information 38. Insertion of new Division— Division 3a—Provisions relating to Enforcement 92l. Interpretation 92m. Directions to protect licensee 92n. Directions for divestiture 92p. Powers of Federal Court of Australia 92q. Defences 92r. Prosecutions 92s. Penalties 92t. Joinder of charges and penalties for certain offences 92u. Continuing obligations 39. Items of national interest 40. Commercial broadcasting translator station licences 41. Insertion of new Division— Division 5c—Supplementary Licences 105m. Interpretation 105n. Application of Division 105p. Application of Act 105q. Use of facilities of commercial stations by supplementary licensees 105r. Programs of supplementary stations 105s. Limitation on number of supplementary licences related to a commercial licence 42. Secrecy 43. Review of decisions 44. Prosecution of offences 45. Insertion of new section— 133. Service, &c., of documents 46. Minor and consequential amendments 47. Formal amendments 48. Application of amendments 49. Amendment of Broadcasting and Television Amendment Act 1977 50. Amendment of Copyright Act 1968 51. Transitional provision—non-resident shareholdings 52. Transitional provision—supplementary licences TABLE OF PROVISIONS—continued SCHEDULE 1 Minor and Consequential amendments SCHEDULE 2 Formal amendments Broadcasting and Television Amendment Act 1981 No. 113 of 1981 An Act to amend the Broadcasting and Television Act 1942, and for related purposes [Assented to 24 June 1981] BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows: Short title, &c. 1. (1) This Act may be cited as the Broadcasting and Television Amendment Act 1981. (2) The Broadcasting and Television Act 19421 is in this Act referred to as the Principal Act. Commencement 2. (1) Subject to sub-section (2), this Act shall come into operation on the day on which it receives the Royal Assent. (2) Section 30 shall come into operation on such date as is fixed by Proclamation. Interpretation 3. Section 4 of the Principal Act is amended— (a) by inserting in the definition of "commercial broadcasting station" in sub-section (1) ", a supplementary broadcasting station" after "public broadcasting station"; (b) by adding at the end of the definition of "commercial broadcasting translator station" in sub-section (1) "or supplementary broadcasting stations"; (c) by inserting after the definition of "Service" in sub-section (1) the following definitions: " 'supplementary licence' means a licence granted in pursuance of an application under sub-section 82a (1), including such a licence as renewed or further renewed; 'supplementary broadcasting station' means a broadcasting station operated by virtue of a supplementary licence;"; and (d) by adding at the end thereof the following sub-section: "(3) A reference in this Act to the contravention of a condition includes a reference to a failure to comply with the condition.". Evidence 4. Section 21 of the Principal Act is amended by omitting from sub-section (5) all the words after "Tribunal". 5. After section 22a of the Principal Act the following sections are inserted: Reference of questions of law to Federal Court of Australia "22b. (1) The Tribunal may refer to the Federal Court of Australia for decision a question of law in a matter arising under this Act in or in connection with proceedings before the Tribunal at an inquiry. "(2) A question may be so referred by the Tribunal of its own motion or at the request of a person having an interest in the proceedings. "(3) The Federal Court of Australia has jurisdiction to hear and determine a question referred to it under this section, and that jurisdiction shall be exercised by that Court constituted as a Full Court. "(4) Where a question concerning a matter arising in or in connection with any proceedings has been referred to the Federal Court of Australia under this section, the Tribunal shall not, in those proceedings— (a) give a decision to which the question is relevant while the reference is pending; or (b) proceed in a manner, or make a decision, that is inconsistent with the opinion of that Court on the question. Documents to be sent to Federal Court of Australia "22c. Where a question of law is referred to the Federal Court of Australia in accordance with section 22b— (a) the Tribunal shall cause to be sent to that Court all documents and other records relating to the proceedings before the Tribunal to which the reference relates; and (b) at the conclusion of the proceedings before that Court with respect to the reference, that Court shall cause the documents and other records to be returned to the Tribunal.". Notice of decision 6. Section 25aa of the Principal Act is amended by omitting "90j or 92f" and substituting "89a, 90ja or 92faa". Publication of journals, &c., and making, &c., of sound recordings, &c. 7. Section 60 of the Principal Act is repealed and the following section is substituted: "60. (1) For the purpose of the exercise of its powers and the performance of its functions under this Act, the Commission may, in such manner as it thinks fit— (a) compile, prepare, issue, circulate and distribute such papers, magazines, periodicals, books, pamphlets, circulars and other literary matter as it thinks fit (including the program schedules of national broadcasting stations, national television stations and other broadcasting and television stations) ; and (b) make, promote, circulate and distribute— (i) cinematograph films and sound recordings of, or relating to— (A) programs of the Commission (whether or not broadcast or televised); and (B) public concerts and other public entertainment referred to in sub-section 59 (2); and (ii) any article or thing bearing a mark that is associated with any matter referred to in sub-sub-paragraph (i) (A) or (B). "(2) The Commission may, if it thinks fit, from time to time determine charges payable in respect of any matter or activity referred to in sub-section (1), with a view to raising as much net revenue as is practicable, having regard to the proper performance of its functions and to the matter or activity concerned. "(3) A program schedule referred to in paragraph (1) (a) shall be made available at an office of the Commission on equal terms to the publishers of any newspaper, magazine or journal published in Australia prior to the publication of the program schedule in pursuance of sub-section (1). "(4) In this section— 'cinematograph film' and 'sound recording' have the same respective meanings as in the Copyright Act 1968; 'mark' includes a symbol, design, colour, device, brand, heading, label, sign, ticket, name, signature, word, letter, numeral, drawing or picture, or any combination of the foregoing.". Limitation on contracts 8. Section 70b of the Principal Act is amended by adding at the end thereof the following sub-section: "(2) Sub-section (1) does not apply to the receipt by the Commission of an amount for the sale of broadcasting or television programs.". Interpretation 9. Section 80 of the Principal Act is amended— (a) by adding at the end of the definition of "applicant" in sub-section (1) "or sub-section 82a (1) or (6), as the case requires, and includes, in the case of an application in accordance with sub-section 82a (1) or (6), a consortium"; (b) by inserting after the definition of "applicant" in sub-section (1) the following definitions: " 'commercial licence' means a licence referred to in paragraph (a) or (b) of the definition of 'licence' in this sub-section, as the case requires; 'commercial translator licence' means a licence referred to in paragraph (c) of the definition of 'licence' in this sub-section;"; (c) by omitting paragraphs (k) and (1) of the definition of "licence" in sub-section (1) and substituting the following paragraphs: "(k) a supplementary licence; (l) a television repeater station licence; or (m) a licence to which section 130a applies;"; (d) by inserting after the definition of "licence" in sub-section (1) the following definitions: " 'metropolitan broadcasting area' has the same meaning as in Division 5a of Part IV; 'person' includes a consortium;"; and (e) by inserting after sub-section (2) the following sub-sections: "(2a) Where a licence is granted in pursuance of an application lodged in accordance with sub-section 82a (1), that licence and— (a) a licence for a commercial broadcasting station referred to in that sub-section in relation to the application; or (b) if the first-mentioned licence is transferred to a person in accordance with section 89a, or, where that licence is held by 2 or more persons as co-owners as described in sub-section 81 (6), if the whole of the interest of any of those persons is transferred to a person in accordance with section 89a—the commercial licence referred to in paragraph 89a (1f) (b) held by the person to whom the licence or the interest, as the case may be, is transferred, shall be deemed, for the purposes of this Act, to be related to each other and to continue to be so related, notwithstanding the renewal of either or both of those licences. "(2b) For the purposes of this Act— (a) a commercial translator licence; and (b) a commercial licence or a supplementary licence, shall be deemed to be associated if the translator station operated by virtue of the commercial translator licence is required by a condition of the licence to receive and re-transmit, without alteration, the programs of the station operated by virtue of the commercial licence or supplementary licence, as the case requires. "(2c) A reference in this Part to a consortium shall be read as a reference to an association of companies.". Grant and renewal 10. Section 81 of the Principal Act is amended— (a) by omitting from sub-section (2) "deciding whether to grant or renew a licence and in"; (b) by omitting from sub-section (2) "commercial" (second occurring); (c) by omitting from paragraph (5) (a) "or commercial television stations" and substituting ", commercial television stations or supplementary broadcasting stations"; and (d) by adding at the end thereof the following sub-section: "(6) Where a supplementary licence or an associated commercial translator licence is granted to the members of a consortium— (a) the persons to whom the licence is granted take the licence in equal undivided shares as owners in common; (b) references in the licence, in this Act and in any other law to the licensee or to the holder of the licence shall be read as references to each co-owner of the licence; and (c) the performance by a co-owner of the licence of an obligation imposed by the licence, by this Act or by any other law on the licensee or the holder of the licence shall, to the extent of that performance, be deemed to release that co-owner and each other co-owner of the licence from that obligation.". Applications 11. Section 82 of the Principal Act is amended by adding at the end thereof the following sub-section: "(6) This section does not apply to a licence in respect of the grant of which an application may be lodged under sub-section 82a (1) or is lodged under sub-section 82a (6).". 12. After section 82 of the Principal Act the following section is inserted: Applications for supplementary licences and associated commercial translator licences "82a. (1) Subject to sub-section (2), the holder of a licence for a commercial broadcasting station or a consortium each member of which is the holder of such a licence may lodge with the Minister, in accordance with a form approved by the Minister, an application for the grant of a licence for a broadcasting station, being a station whose programs are to be transmitted solely by way of frequency modulation, for the purpose of serving an area the specification of which is to be determined by the Minister in accordance with sub-section (10). "(2) An application shall not be lodged under sub-section (1) by— (a) the holder of a licence for a commercial broadcasting station whose programs are transmitted solely by way of frequency modulation; or (b) a consortium of which any member is a person referred to in paragraph (a). "(3) Where an application (other than an application to which sub-section (4) applies) is lodged in accordance with sub-section (1) for the grant of a licence, the Minister may— (a) refer the application to the Tribunal, together with a notice in writing setting out— (i) the specification of the area determined by the Minister to be served in pursuance of the supplementary licence, if granted; and (ii) an outline of the other specifications to which it is proposed the supplementary licence, if granted, is to be subject; or (b) dismiss the application for a reason relating to technical matters or to the planning or development of broadcasting and television services. "(4) The Minister shall dismiss an application lodged under sub-section (1) by a consortium if, in the opinion of the Minister, the whole or a substantial part of the area served in pursuance of the commercial licence referred to in that sub-section held by a member of the consortium is not coextensive with the whole or a substantial part of the area served in pursuance of the commercial licence so referred to held by the other member, or each of the other members, as the case requires. "(5) The Minister shall, as soon as practicable but in any case within 21 days, inform an applicant, by notice in writing, of his decision under sub-section (3) or (4) and— (a) where paragraph (3) (a) applies—of the matters set out in the notice referred to in that paragraph; or (b) where paragraph (3) (b) applies—of the reason or reasons for his decision. "(6) Where paragraph (3) (a) applies and— (a) the area specified in a notice under that paragraph to be served in pursuance of the supplementary licence does not occupy the whole of the area served in pursuance of the commercial licence, or, if the application for the supplementary licence is lodged by a consortium, the aggregate of the areas served in pursuance of the commercial licences, to which the supplementary licence would, if granted, be related; or (b) the supplementary licence referred to in that paragraph would, if granted, be related to one or more commercial licences associated with one or more commercial translator licences, the Minister may, in his discretion, in the notice referred to in sub-section (5), include a statement that the applicant for the supplementary licence may lodge with the Tribunal, not later than a specified date (not being earlier than 21 days after the date of service of the notice), an application or applications, in accordance with a form approved by the Minister, for the grant of such number of commercial translator licences as is specified in the statement. "(7) A statement referred to in sub-section (6) shall set out, in relation to the licence, or each of the licences, as the case may be, to which the statement relates— (a) the specification of the area determined by the Minister to be served in pursuance of the licence, if granted; and (b) an outline of the other specifications to which it is proposed the licence, if granted, is to be subject. "(8) The Minister shall cause a copy of a notice containing a statement referred to in sub-section (6) to be given to the Tribunal. "(9) The Minister shall not, in pursuance of sub-paragraph (3) (a) (i) or paragraph (7) (a), specify as the area to be served in pursuance of a supplementary licence, or in pursuance of a commercial translator licence associated with such a licence, an area of which the whole or a substantial part is coextensive with, or is within, a metropolitan broadcasting area that is not in Tasmania. "(10) Subject to sub-section (9), the Minister shall— (a) in determining the specification of the area to be served in pursuance of a supplementary licence; and (b) in deciding whether to make a statement under sub-section (6), and, where he decides to do so, in determining the specification of the area to be served in pursuance of a commercial translator licence to which the statement relates, endeavour to ensure that, so far as practicable, the whole of the area served in pursuance of a commercial licence to which the supplementary licence would, if granted, be related and any one or more commercial translator licences associated with that commercial licence shall be served in pursuance of the supplementary licence and, if necessary, one or more commercial translator licences associated with the supplementary licence. "(11) Where the Minister refers an application for the grant of a supplementary licence to the Tribunal under sub-section (3), the Tribunal shall— (a) as soon as practicable after it receives the application; or (b) if the notice under sub-section (5) includes a statement referred to in sub-section (6) and the applicant for the supplementary licence lodges an application or applications in accordance with sub-section (6)—as soon as practicable after the date specified in the statement, publish, in the Gazette and in a newspaper or newspapers, if any, circulating in the area concerned, a notice— (c) stating that— (i) an application has been lodged with the Minister under sub-section (1) and has been referred by him to the Tribunal; and (ii) where paragraph (b) applies—an application has, or applications have, as the case may be, been lodged with the Tribunal under sub-section (6), and specifying, in the case of each application, the kind of licence applied for; (d) specifying the name and address of the applicant for the licence or licences or, in the case of an application by a consortium, the name and address of each member of the consortium; (e) setting out the matters set out in the notice referred to in paragraph (3) (a) and, where applicable, in the statement referred to in sub-section (6), in relation to the licence or each of the licences; and (f) stating that any interested person may, not later than a specified date (not being earlier than 21 days after the date of publication of the notice in the Gazette), lodge with the Tribunal a written submission relating to the grant of the licence, or of any one or more of the licences, to which the notice in the Gazette relates. "(12) The Tribunal shall, within the period of 21 days after the date specified under paragraph (11) (f), serve on the person who lodged an application in accordance with sub-section (1) copies of all submissions lodged by virtue of that paragraph. "(13) A person on whom a copy of a submission is served under sub-section (12) may, within the period of 21 days after the expiration of the period referred to in that sub-section, lodge with the Tribunal his reply to the submission. "(14) Notwithstanding the preceding provisions of this section, where the Tribunal is satisfied that the circumstances justify its so doing, it may, of its own motion or at the request of any interested person— (a) grant an extension of the time for the lodgment of a particular application, submission, or reply by virtue of those provisions, whether or not that time has expired; and (b) give such directions, and do such things, in consequence of the grant of the extension as it considers necessary or expedient for the just and proper consideration of an application for the grant of the licence concerned.". Consideration of applications by Tribunal 13. Section 83 of the Principal Act is amended— (a) by omitting from sub-section (1) "(4) of section 82" and substituting "82 (4) or 82a (13), as the case requires, "; (b) by omitting sub-section (2) and substituting the following sub-sections: "(2) Where— (a) in respect of the grant of any of the following licences for which there is only one applicant: (i) a broadcasting translator station licence (other than such a licence for which an application has been lodged under sub-section 82a (6) or a television translator station licence; (ii) a television repeater station licence; (iii) a licence to which section 130a applies, no submissions (other than submissions that, in the opinion of the Tribunal, are frivolous, vexatious or not made in good faith) have been lodged by virtue of sub-paragraph 82 (1) (b) (ii) objecting to the grant of the licence or to the grant of the licence to the applicant; or (b) in respect of the grant of a supplementary licence, or a commercial translator licence for which an application has been lodged under sub-section 82a (6), no submissions (other than submissions that, in the opinion of the Tribunal, are frivolous, vexatious or not made in good faith) have been lodged by virtue of paragraph 82a (11) (f) objecting to the grant of the licence, the Tribunal shall, as soon as practicable after the expiration of the period first referred to in sub-section 82 (4) or 82a (13), as the case requires, hold an inquiry into the grant of the licence or, if it thinks fit, consider the application without holding an inquiry. "(2a) Where an applicant for a supplementary licence has lodged an application or applications under sub-section 82a (6) for the grant of a commercial translator licence or commercial translator licences, the Tribunal may, if it thinks fit, hold a joint inquiry into the grant of the supplementary licence and that commercial translator licence or any one or more of those commercial translator licences."; (c) by adding at the end of sub-section (3) "or 82a, as the case requires."; (d) by omitting sub-section (5) and substituting the following sub-sections: "(5) An applicant for a licence shall, at the inquiry into the grant of the licence or, if the Tribunal, in accordance with sub-section (2), considers the application without holding an inquiry, before the consideration by the Tribunal, give an undertaking in writing to the Tribunal that he will, if the licence is granted to him— (a) comply with the conditions of the licence; and (b) if the licence is a licence referred to in paragraph (a), (b), (g), (h), (k), (1) or (m) of the definition of 'licence' in sub-section 80 (1)- (i) provide an adequate and comprehensive service in pursuance of the licence, having regard to— (a) the nature of the community to be served in pursuance of the licence; (b) the diversity of the interests of that community; and (c) the nature of the other broadcasting and television services (if any) of which satisfactory reception is being obtained by that community; and (ii) encourage the provision of programs wholly or substantially produced in Australia and use, and encourage the use of, Australian creative resources in and in connection with the provision of programs. "(6) The Tribunal shall not refuse to grant a licence to a person unless it has held an inquiry into the grant of the licence and— (a) the person has failed to give an undertaking in accordance with sub-section (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 effectively to operate the relevant broadcasting station or television station, as the case may be; and (c) is otherwise capable of complying with the conditions of the licence; (ii) where— (a) the licence is a commercial licence (other than a licence for a metropolitan commercial broadcasting station as defined by sub-section 90 (1) or a licence referred to in paragraph 92 (1) (c)) or a supplementary licence; and (b) in the opinion of the Tribunal, in the area to be served in pursuance of the licence, satisfactory reception is being obtained of programs from one or more broadcasting or television stations operated by virtue of a licence or licences of a kind to which sub-sub-paragraph (a) applies, the need to avoid undue concentration of influence, whether direct or indirect, on the person and on the company or companies holding the other licence or licences; (iii) where, in the opinion of the Tribunal, in the area to be served in pursuance of the licence, satisfactory reception is being obtained of programs from one or more broadcasting or television stations—the need for the commercial viability of that station or those stations; (d) it appears to the Tribunal that a licence of the kind contemplated by the matters set out in a notice under paragraph 82 (1) (a) or 82a (3) (a) or in a statement referred to in sub-section 82a (6) should not be granted; (e) where the licence is a supplementary licence, the Tribunal, having due regard to the need for the commercial viability of the broadcasting stations and television stations in the area to be served in pursuance of the licence, if granted, determines that an additional commercial broadcasting station to serve that area is reasonably likely to be commercially viable during the period in which the licence, if granted, would be in force; or (f) the circumstances are such that, if it granted the licence to the person— (i) the Tribunal would have reasonable grounds for believing that a person would be contravening section 90c or 92 in circumstances that would constitute an offence against that section; (ii) a person would be contravening section 90f or 92c; or (iii) a condition specified in section 90g or 92d would be contravened. "(7) For the purposes of paragraph (6) (f), the Tribunal may disregard a contravention of section 90c or 92 by a person if it is satisfied that— (a) as soon as practicable after the grant of the licence the person will take all reasonable steps with a view to causing the contravention to cease; or (b) the contravention will not result in the person being, within the meaning of Division 2 or 3, as the case requires, of Part IV, in a position to control the company to which the licence is to be granted. "(8) Where the Tribunal makes a determination in accordance with paragraph (6) (e), it shall, by notice in writing, inform the Minister of the determination and the reasons for the determination. "(9) Where there are 2 or more applicants for a licence, each of whom is a person to whom, but for this sub-section, the Tribunal would be required to grant the licence, the Tribunal shall grant the licence to the most suitable applicant.". Imposition of conditions 14. Section 84 of the Principal Act is amended by omitting from sub-section (1) all the words after "substantially consistent with" and substituting "the matters set out in a notice under paragraph 82 (1) (a) or 82a (3) (a) or in a statement referred to in sub-section 82a (6), as the case may be, and notify the Tribunal.accordingly". Variation of conditions 15. Section 85 of the Principal Act is amended by omitting from sub-section (2) "commercial" (second occurring). Renewal 16. Section 86 of the Principal Act is amended— (a) by adding at the end of sub-section (4) "and, in the case of a renewal to which section 86a applies, relating to the matter concerning which the Tribunal is required to make a determination under sub-section 86a (2)"; (b) by omitting sub-sections (10) and (11) and substituting the following sub-sections: "(10) The licensee shall, at the inquiry or before the consideration by the Tribunal of the application, as the case may be, give a fresh undertaking in writing to the Tribunal in the same terms as an undertaking required to be given under sub-section 83 (5). "(11) The Tribunal shall not refuse to renew the licence unless it has held an inquiry into the renewal of the licence. "(11a) Except as provided in sub-sections (11b) and (11d) and section 86a, the Tribunal shall not refuse to renew the licence. "(11b) Subject to sub-section (11), the Tribunal shall refuse to renew the licence if— (a) the licensee has failed to give an undertaking under sub-section (10); (b) the Tribunal is satisfied that the renewal 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 renew the licence: (i) the Tribunal is satisfied that the licensee has failed to comply with the undertaking (if any) given under sub-section (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 effectively to operate the broadcasting station or television station, as the case may be, to which the licence relates; (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 station operated by virtue of the licence; or (d) the circumstances are such that, if the Tribunal renewed the licence— (i) the Tribunal would have reasonable grounds for believing that a person would b