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Schedule 6—Taxation and transitional support payments

Schedule 6 Taxation and transitional support payments

Part 1 General amendments

Australian Communications and Media Authority Act 2005

1  At the end of paragraph 9(h)

Add:

                       or (vi)  Part 14AA of the Broadcasting Services Act 1992 ;

2  Subparagraph 10(1)(o)(ii)

After “other than”, insert “Part 14AA or”.

Broadcasting Services Act 1992

3  Subsection 6(1)

Insert:

interim tax means tax imposed by the Commercial Broadcasting (Tax) Act 2017 .

transmitter licence has the same meaning as in the Radiocommunications Act 1992 .

4  Subsection 204(1) (after table item dealing with subsection 146D(4))

Insert:

 

Refusal to remit the whole or part of a late payment penalty

Subsection 205AF(3)

The person liable to pay the penalty

5  After Part 14

Insert:

Part 14AA Collection and recovery of interim tax

   

205AA   Simplified outline of this Part

•      The ACMA must make assessments of interim tax.

•      Interim tax is due and payable 28 days after the assessment is given to the person to whom the assessment relates.

•      There is a penalty for late payment of interim tax.

•      Schemes to avoid interim tax are prohibited.

205AB   Assessments

             (1)  If interim tax is payable by a person in relation to the issue of a transmitter licence, the ACMA must:

                     (a)  make a written assessment setting out the interim tax payable by the person; and

                     (b)  do so on, or as soon as practicable after, the later of the following days:

                              (i)  the day the licence was issued;

                             (ii)  1 December 2017.

             (2)  If interim tax is payable by a person in relation to an anniversary of the day a transmitter licence came into force, the ACMA must:

                     (a)  make a written assessment setting out the interim tax payable by the person; and

                     (b)  do so on, or as soon as practicable after, the later of the following days:

                              (i)  the anniversary;

                             (ii)  1 December 2017.

             (3)  If interim tax is payable by a person in relation to a transmitter licence ceasing to be in force, the ACMA must:

                     (a)  make a written assessment setting out the interim tax payable by the person; and

                     (b)  do so on, or as soon as practicable after, the later of the following days:

                              (i)  the day the licence ceased to be in force;

                             (ii)  1 December 2017.

             (4)  If interim tax is payable by a person in relation to the holding of a transmitter licence at the start of 1 July 2017, the ACMA must:

                     (a)  make a written assessment setting out the interim tax payable by the person; and

                     (b)  do so on, or as soon as practicable after, 1 December 2017.

Notification of assessment

             (5)  As soon as practicable after making an assessment under this section, the ACMA must give a copy of the assessment to the person to whom the assessment relates.

Variation of assessments

             (6)  The ACMA may vary an assessment made under this section by making such alterations and additions as it thinks necessary, even if interim tax has been paid in respect of an assessment.

             (7)  Unless the contrary intention appears, a varied assessment is taken, for the purposes of this Part, to be an assessment under this section.

205AC   When interim tax becomes due and payable

                   Interim tax becomes due and payable on:

                     (a)  the 28th day after a copy of the assessment of the interim tax was given to the person to whom the assessment relates; or

                     (b)  if that assessment is varied—the 28th day after a copy of the varied assessment was given to the person to whom the varied assessment relates.

205AD   Recovery of interim tax

                   Interim tax:

                     (a)  is a debt due to the ACMA on behalf of the Commonwealth; and

                     (b)  may be recovered by the ACMA, on behalf of the Commonwealth, in:

                              (i)  the Federal Court; or

                             (ii)  the Federal Circuit Court; or

                            (iii)  a court of a State or Territory that has jurisdiction in relation to the matter.

205AE   Refund of overpayment of interim tax

                   If there is an overpayment of interim tax, the overpayment is to be refunded by the ACMA on behalf of the Commonwealth.

205AF   Late payment penalty

             (1)  If an amount of interim tax that is payable by a person remains unpaid after the day on which it becomes due and payable, the person is liable to pay a penalty ( late payment penalty ) on the unpaid amount for each day until all of the interim tax has been paid.

             (2)  The late payment penalty rate is 20% per year, or such lower rate as the ACMA determines in writing for the purposes of this subsection.

             (3)  The ACMA may remit the whole or part of a late payment penalty that a person is liable to pay under subsection (1).

             (4)  The late payment penalty for a day is due and payable at the end of that day.

             (5)  Late payment penalty:

                     (a)  is a debt due to the ACMA on behalf of the Commonwealth; and

                     (b)  may be recovered by the ACMA, on behalf of the Commonwealth, in:

                              (i)  the Federal Court; or

                             (ii)  the Federal Circuit Court; or

                            (iii)  a court of a State or Territory that has jurisdiction in relation to the matter.

             (6)  If the amount of the late payment penalty for a day is not an amount of whole dollars, the late payment penalty is rounded to the nearest dollar (rounding 50 cents upwards).

             (7)  If there is an overpayment of late payment penalty, the overpayment is to be refunded by the ACMA on behalf of the Commonwealth.

             (8)  A determination under subsection (2) is a legislative instrument.

205AG   Anti-avoidance

             (1)  The holder of a transmitter licence must not, either alone or together with one or more other persons, do any of the following:

                     (a)  enter into a scheme;

                     (b)  begin to carry out a scheme;

                     (c)  carry out a scheme;

if it would be concluded that the holder of the transmitter licence did so for the sole or dominant purpose of avoiding the application of any provision of the Commercial Broadcasting (Tax) Act 2017 (other than section 14 of that Act) in relation to:

                     (d)  the holder of the transmitter licence; or

                     (e)  the holder of any other transmitter licence.

Civil penalty provision

             (2)  Subsection (1) is a civil penalty provision.

Note:          Part 14B deals with civil penalties.

Validity of transactions

             (3)  A contravention of subsection (1) does not affect the validity of any transaction.

Scheme

             (4)  For the purposes of this section, scheme means:

                     (a)  any agreement, arrangement, understanding, promise or undertaking, whether express or implied; or

                     (b)  any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.

6  Subsection 205F(4)

After “other than subsection”, insert “205AG(1) or”.

7  Subsection 205F(5)

After “another civil penalty provision”, insert “(other than subsection 205AG(1))”.

8  After subsection 205F(5)

Insert:

          (5A)  The pecuniary penalty payable by a person in respect of a contravention of subsection 205AG(1) must not exceed the sum of:

                     (a)  whichever of the following is applicable:

                              (i)  if the person is a body corporate—2,000 penalty units;

                             (ii)  if the person is not a body corporate—400 penalty units; and

                     (b)  if the Federal Court is satisfied that, as a result of the scheme to which the contravention relates, the person or another person has avoided becoming liable to pay an amount of interim tax—200% of the amount of interim tax avoided.

          (5B)  The pecuniary penalty payable by a person in respect of a contravention of subsection 205E(1) that relates to subsection 205AG(1) must not exceed the sum of:

                     (a)  whichever of the following is applicable:

                              (i)  if the person is a body corporate—2,000 penalty units;

                             (ii)  if the person is not a body corporate—400 penalty units; and

                     (b)  if the Federal Court is satisfied that, as a result of the scheme to which the contravention of subsection 205AG(1) relates, the person or another person has avoided becoming liable to pay an amount of interim tax—200% of the amount of interim tax avoided.

Radiocommunications Act 1992

9  Section 5

Insert:

interim tax means tax imposed by the Commercial Broadcasting (Tax) Act 2017 .

10  After subsection 100(3B)

Insert:

       (3BA)  The ACMA must not issue a transmitter licence authorising operation of a radiocommunications transmitter for transmitting or re-transmitting a commercial broadcasting service if:

                     (a)  the ACMA has reasonable grounds to believe that the application for the licence is part of a scheme:

                              (i)  entered into; or

                             (ii)  being carried out; or

                            (iii)  that has been carried out;

                            for the sole or dominant purpose of avoiding the application of any provision of the Commercial Broadcasting (Tax) Act 2017 (other than section 14 of that Act); and

                     (b)  the applicant has not satisfied the ACMA that the application for the licence is not part of such a scheme.

        (3BB)  For the purposes of subsection (3BA), scheme means:

                     (a)  any agreement, arrangement, understanding, promise or undertaking, whether express or implied; or

                     (b)  any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.

11  After subsection 100(5)

Insert:

          (5A)  In deciding whether to issue a transmitter licence authorising operation of a radiocommunications transmitter:

                     (a)  within a part of the spectrum designated under subsection 31(1) or (1A); and

                     (b)  at a particular location (the relevant location );

for transmitting or re-transmitting a commercial broadcasting service, the ACMA must also have regard to:

                     (c)  whether:

                              (i)  the commercial television broadcasting licensee; or

                             (ii)  the commercial radio broadcasting licensee;

                            who provides the commercial broadcasting service has previously held a transmitter licence authorising operation of a radiocommunications transmitter for transmitting or re-transmitting the commercial broadcasting service at a location that is the same as, or substantially similar to, the relevant location; and

                     (d)  whether there is a commercial arrangement between:

                              (i)  the applicant for the transmitter licence; and

                             (ii)  the commercial television broadcasting licensee or the commercial radio broadcasting licensee who provides the commercial broadcasting service;

                            in relation to:

                            (iii)  the application; or

                            (iv)  the transmission of the commercial broadcasting service at a location that is the same as, or substantially similar to, the relevant location.

12  At the end of paragraph 107(1)(c)

Add:

                     and (iii)  amounts of interim tax;

13  At the end of paragraph 109(1)(b)

Add:

                     and (iii)  amounts of interim tax;

Radiocommunications Taxes Collection Act 1983

14  After section 4

Insert:

4A   Transmitter licence associated with a commercial broadcasting licence

                   For the purposes of this Act, the question whether a transmitter licence is associated with a commercial broadcasting licence is to be determined in the same manner as that question is determined for the purposes of the Commercial Broadcasting (Tax) Act 2017 .

15  After subsection 7A(1A)

Insert:

          (1B)  If there is an overpayment of penalty, the overpayment is to be refunded by the ACMA on behalf of the Commonwealth.

16  After section 10A

Insert:

10B   Refund of overpayments

                   If there is an overpayment of tax, the overpayment is to be refunded by the ACMA on behalf of the Commonwealth.

10C   Pro-rata refund of tax imposed on the issue of a transmitter licence

             (1)  If:

                     (a)  a transmitter licence was issued to a person under section 100 or 102 of the Radiocommunications Act 1992 before 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence; and

                     (c)  the transmitter licence was in force at the start of 1 July 2017; and

                     (d)  tax was imposed by subsection 6(1), (2) or (7) of the Radiocommunications (Transmitter Licence Tax) Act 1983 on the issue of the transmitter licence; and

                     (e)  the person has paid the tax;

the amount worked out using the following formula must be refunded by the ACMA on behalf of the Commonwealth:

where:

days in period of transmitter licence means the number of days in the period of the transmitter licence.

days in post-1 July 2017 period means the number of days in the period:

                     (a)  beginning at the start of 1 July 2017; and

                     (b)  ending at the end of the period of the transmitter licence.

             (2)  If:

                     (a)  a transmitter licence was issued to a person under section 100 or 102 of the Radiocommunications Act 1992 before 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence; and

                     (c)  the transmitter licence was in force at the start of 1 July 2017; and

                     (d)  tax was imposed by subsection 6(3) or (8) of the Radiocommunications (Transmitter Licence Tax) Act 1983 on the issue of the transmitter licence; and

                     (e)  the person has paid the tax;

the amount worked out using the following formula must be refunded by the ACMA on behalf of the Commonwealth:

where:

days in post-1 July 2017 period means the number of days in the period:

                     (a)  beginning at the start of 1 July 2017; and

                     (b)  ending at the end of the anniversary of the day the transmitter licence came into force that occurs during the financial year ending on 30 June 2018.

post-issue period means the number of days in the period:

                     (a)  beginning at the start of the day after the transmitter licence was issued; and

                     (b)  ending at the end of the anniversary of the day the transmitter licence came into force that occurs during the financial year ending on 30 June 2018.

             (3)  For the purposes of this section, disregard:

                     (a)  Division 6 of Part 3.3 of the Radiocommunications Act 1992 ; and

                     (b)  Part 10 of the Broadcasting Services Act 1992 ;

in working out the period of a transmitter licence.

Note 1:       See subsection 103(2) of the Radiocommunications Act 1992 , which deals with the duration of transmitter licences issued under section 100 of that Act.

Note 2:       See subsection 103(4A) of the Radiocommunications Act 1992 , which deals with the duration of transmitter licences issued under section 102 of that Act.

10D   Pro-rata refund of tax imposed on the anniversary of the day a transmitter licence came into force

             (1)  If:

                     (a)  a transmitter licence was issued to a person under section 100 or 102 of the Radiocommunications Act 1992 before 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence; and

                     (c)  the transmitter licence was in force at the start of 1 July 2017; and

                     (d)  tax was imposed by subsection 6(3) or (8) of the Radiocommunications (Transmitter Licence Tax) Act 1983 on the anniversary of the day the transmitter licence came into force that occurred during the financial year ending on 30 June 2017; and

                     (e)  the person has paid the tax;

the amount worked out using the following formula must be refunded by the ACMA on behalf of the Commonwealth:

where:

days in post-1 July 2017 period means the number of days in the period:

                     (a)  beginning at the start of 1 July 2017; and

                     (b)  ending at whichever is the earlier of the following:

                              (i)  the end of the anniversary of the day the transmitter licence came into force that occurs during the financial year ending on 30 June 2018;

                             (ii)  the end of the period of the transmitter licence.

post-anniversary period means the number of days in the period:

                     (a)  beginning at the start of the anniversary mentioned in paragraph (d); and

                     (b)  ending at whichever is the earlier of the following:

                              (i)  the end of the anniversary of the day the transmitter licence came into force that occurs during the financial year ending on 30 June 2018;

                             (ii)  the end of the period of the transmitter licence.

             (2)  If:

                     (a)  a transmitter licence was issued to a person under section 100 or 102 of the Radiocommunications Act 1992 before 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence; and

                     (c)  the transmitter licence was in force at the start of 1 July 2017; and

                     (d)  tax was imposed by subsection 6(5) or (11) of the Radiocommunications (Transmitter Licence Tax) Act 1983 on the holding of the transmitter licence on an anniversary of the day the transmitter licence came into force that occurred before 1 July 2017; and

                     (e)  the person has paid the tax;

the amount worked out using the following formula must be refunded by the ACMA on behalf of the Commonwealth:

where:

days in post-1 July 2017 period means the number of days in the period:

                     (a)  beginning at the start of 1 July 2017; and

                     (b)  ending at the end of the period of the transmitter licence.

post-anniversary period means the number of days in the period:

                     (a)  beginning at the start of the anniversary mentioned in paragraph (d); and

                     (b)  ending at the end of the period of the transmitter licence.

             (3)  For the purposes of this section, disregard:

                     (a)  Division 6 of Part 3.3 of the Radiocommunications Act 1992 ; and

                     (b)  Part 10 of the Broadcasting Services Act 1992 ;

in working out the period of a transmitter licence.

Note 1:       See subsection 103(2) of the Radiocommunications Act 1992 , which deals with the duration of transmitter licences issued under section 100 of that Act.

Note 2:       See subsection 103(4A) of the Radiocommunications Act 1992 , which deals with the duration of transmitter licences issued under section 102 of that Act.

10E   Set-off

                   If:

                     (a)  an amount of interim tax is payable by a person (the first amount ); and

                     (b)  an amount is payable by the Commonwealth to the person under section 10B, 10C or 10D (the second amount );

the ACMA may, on behalf of the Commonwealth, set off the whole or a part of the first amount against the whole or a part of the second amount.

Part 2 Termination of the liability of commercial broadcasters to pay transmitter licence tax

Radiocommunications (Transmitter Licence Tax) Act 1983

17  After section 4

Insert:

4A   Transmitter licence associated with a commercial broadcasting licence

                   For the purposes of this Act, the question whether a transmitter licence is associated with a commercial broadcasting licence is to be determined in the same manner as that question is determined for the purposes of the Commercial Broadcasting (Tax) Act 2017 .

18  At the end of subsection 6(1)

Add “This subsection has effect subject to subsection (1A).”.

19  After subsection 6(1)

Insert:

          (1A)  Subsection (1) does not impose a tax on the issue of a transmitter licence if:

                     (a)  the transmitter licence is issued on or after 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence.

20  Subsection 6(2)

Omit “If”, substitute “Subject to subsection (2A), if”.

21  After subsection 6(2)

Insert:

          (2A)  Subsection (2) does not impose a tax on the issue of a transmitter licence if:

                     (a)  the transmitter licence is issued on or after 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence.

22  Subsection 6(3)

After “subsections” insert “(3A), (3B),”.

23  After subsection 6(3)

Insert:

          (3A)  Subsection (3) does not impose a tax on the issue of a transmitter licence if:

                     (a)  the transmitter licence is issued on or after 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence.

          (3B)  Subsection (3) does not impose a tax on a particular anniversary of the day a transmitter licence came into force if:

                     (a)  the anniversary occurs on or after 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence.

24  After subsection 6(4)

Insert:

          (4A)  Subsection (4) does not apply in relation to the issue of a transmitter licence if:

                     (a)  the transmitter licence is issued on or after 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence.

25  Subsection 6(5)

Omit “If”, substitute “Subject to subsection (5A), if”.

26  After subsection 6(5)

Insert:

          (5A)  Subsection (5) does not impose a tax on the holding of a transmitter licence on a particular anniversary of the day the transmitter licence came into force if:

                     (a)  the anniversary occurs on or after 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence.

27  Subsection 6(6)

Omit “If”, substitute “Subject to subsection (6A), if”.

28  After subsection 6(6)

Insert:

          (6A)  Subsection (6) does not apply to a particular anniversary of the day a transmitter licence came into force if:

                     (a)  the anniversary occurs on or after 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence.

29  Subsection 6(7)

Omit “If”, substitute “Subject to subsection (7A), if”.

30  After subsection 6(7)

Insert:

          (7A)  Subsection (7) does not impose a tax on the issue of a transmitter licence if:

                     (a)  the transmitter licence is issued on or after 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence.

31  Subsection 6(8)

After “subsections” insert “(8A), (8B),”.

32  After subsection 6(8)

Insert:

          (8A)  Subsection (8) does not impose a tax on the issue of a transmitter licence if:

                     (a)  the transmitter licence is issued on or after 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence.

          (8B)  Subsection (8) does not impose a tax on a particular anniversary of the day a transmitter licence came into force if:

                     (a)  the anniversary occurs on or after 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence.

33  After subsection 6(10)

Insert:

        (10A)  Subsections (9) and (10) do not apply in relation to the issue of a transmitter licence if:

                     (a)  the transmitter licence is issued on or after 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence.

34  Subsection 6(11)

Omit “If”, substitute “Subject to subsection (11A), if”.

35  After subsection 6(11)

Insert:

        (11A)  Subsection (11) does not impose a tax on the holding of a transmitter licence on a particular anniversary of the day the transmitter licence came into force if:

                     (a)  the anniversary occurs on or after 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence.

36  Subsection 6(12)

Omit “If”, substitute “Subject to subsection (13), if”.

37  At the end of section 6

Add:

           (13)  Subsection (12) does not apply to a particular anniversary of the day a transmitter licence came into force if:

                     (a)  the anniversary occurs on or after 1 July 2017; and

                     (b)  the transmitter licence is associated with a commercial broadcasting licence.

Part 3 Transitional support payments

38  Definitions

In this Part:

broadcasting service has the same meaning as in the Broadcasting Services Act 1992 .

commercial radio broadcasting licence has the same meaning as in the Broadcasting Services Act 1992 .

commercial television broadcasting licence has the same meaning as in the Broadcasting Services Act 1992 .

designated day :

                     (a)  for the financial year beginning on 1 July 2017—means 1 November 2017; or

                     (b)  for a later financial year—means 1 July in the financial year.

eligible financial year means:

                     (a)  the financial year beginning on 1 July 2017; or

                     (b)  the financial year beginning on 1 July 2018; or

                     (c)  the financial year beginning on 1 July 2019; or

                     (d)  the financial year beginning on 1 July 2020; or

                     (e)  the financial year beginning on 1 July 2021.

Secretary means the Secretary of the Department.

39  Transitional support payments

(1)       If:

                     (a)  a company is specified in the table set out in item 40; and

                     (b)  at the start of the designated day for an eligible financial year, the company held:

                              (i)  a commercial television broadcasting licence; or

                             (ii)  a commercial radio broadcasting licence; and

                     (c)  the Secretary is satisfied that it is likely that company will hold:

                              (i)  a commercial television broadcasting licence; or

                             (ii)  a commercial radio broadcasting licence;

                            throughout the period:

                            (iii)  beginning at the start of the designated day; and

                            (iv)  ending at the end of the financial year; and

                     (d)  the company has not given the Secretary a notice under subitem (2);

the Secretary must:

                     (e)  determine, in writing, that the amount specified in the table opposite the name of the company is payable by the Commonwealth to the company by way of financial assistance in respect of the financial year; and

                      (f)  do so on, or as soon as practicable after, the designated day for the financial year.

(2)       A company may, before 1 November 2017, give the Secretary a written notice stating that the company does not want to receive any payments under this item.

(3)       A determination made under subitem (1) is not a legislative instrument.

40  Table

This is the table mentioned in item 39.

 

Companies and amounts

Item

Company

Amount ($)

1

Australian Capital Television Pty Ltd

1,398,000

2

Prime Television (Southern) Pty Limited

945,000

3

Northern Rivers Television Pty Ltd

632,000

4

WIN Television NSW Pty Limited

1,331,000

5

Star Broadcasting Network Pty Ltd

3,000

6

South Coast & Tablelands Broadcasting Pty Ltd

22,000

7

Blue Mountains Broadcasters Pty Limited

2,000

8

Tweed Radio & Broadcasting Co Pty Ltd

2,000

9

WIN Radio Pty Limited

22,000

10

Wollongong Broadcasters Pty Ltd

22,000

11

WIN Television Griffith Pty Ltd

16,000

12

WIN Television SA Pty Ltd

66,000

13

Rebel FM Stereo Pty Ltd

9,000

14

Midwest Radio Network Pty Ltd

4,000

15

Darwin Digital Television Pty Ltd

6,000

16

West Digital Television No.2 Pty Limited

19,000

17

West Digital Television Pty Ltd

47,000

18

Spencer Gulf Telecasters Pty Limited

16,000

19

Mildura Digital Television Pty Ltd

15,000

 

41  Conditions of payments

(1)       A payment to a company under item 39 in respect of a financial year is subject to the condition that, if the company ceases to be the holder of:

                     (a)  a commercial television broadcasting licence; or

                     (b)  a commercial radio broadcasting licence;

at a time (the cessation time ) during the period:

                     (c)  beginning at the start of the designated day for the financial year; and

                     (d)  ending at the end of the financial year;

the company will repay to the Commonwealth the amount worked out using the formula:

where:

amount paid means the amount of the payment to the company.

days in financial year means the number of days in the financial year.

days in non-licence period means the number of days in the period:

                     (a)  beginning at the start of the day after the cessation time; and

                     (b)  ending at the end of the financial year.

(2)       A payment to a company under item 39 in respect of a financial year is subject to the condition that the company will:

                     (a)  spend the amount of the payment (reduced by any amount payable by the company under subitem (1) of this item in relation to the financial year) in connection with the provision by the company of broadcasting services authorised by the commercial television broadcasting licence, or the commercial radio broadcasting licence, held by company; and

                     (b)  do so before the end of the financial year.

(3)       A payment to a company under item 39 in respect of a financial year is subject to the condition that the company will:

                     (a)  give the Secretary a written statement declaring that the company has complied with the condition set out in subitem (2) of this item in relation to the financial year; and

                     (b)  do so within 28 days after the end of the financial year.

(4)       A payment to a company under item 39 is subject to the condition that, if the company does not fulfil a condition to which the payment is subject under subitem (2) or (3) of this item, the company will, if the Secretary so determines, repay to the Commonwealth the amount specified in the determination.

(5)       The amount specified in the determination under subitem (4) must not be more than the amount of the payment (reduced by any amount payable by the company under subitem (1) in relation to the financial year).

(6)       A determination made under subitem (4) is not a legislative instrument.

(7)       An amount payable by a company to the Commonwealth under this item:

                     (a)  is a debt due to the Commonwealth; and

                     (b)  may be recovered by the Secretary, on behalf of the Commonwealth, in:

                              (i)  the Federal Court of Australia; or

                             (ii)  the Federal Circuit Court of Australia; or

                            (iii)  a court of a State or Territory that has jurisdiction in relation to the matter.

42  Delegation by the Secretary

(1)       The Secretary may, by writing, delegate any or all of his or her powers under this Part to an SES employee, or acting SES employee, in the Department.

Note:          The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901 .

(2)       In exercising powers under a delegation under subitem (1), the delegate must comply with any directions of the Secretary.