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BROADCASTING SERVICES AMENDMENT BILL 1994 [1995]

Order of the day read for the adjourned debate on the motion of the

Minister for the Environment, Sport and Territories (Senator

Faulkner)--That this bill be now read a second time.

Debate resumed.

Question put and passed.

Bill read a second time.

The Senate resolved itself into committee for the consideration of the

bill.

In the committee

Bill taken as a whole by leave.

Explanatory memorandum: The Minister for Primary Industries and Energy

(Senator Bob Collins) tabled a revised supplementary explanatory

memorandum relating to the Government amendments to be moved to the

bill.

Senator Bob Collins moved the following amendments together by leave:

Clause 2, page 2, lines 1 and 2, omit the clause, substitute the

following clause:

Commencement

"2.(1) Subject to this section, this Act commences on the 28th day

after the day on which it receives the Royal Assent.

"(2) Sections 1, 2, 3 and 4, subsection 6(1) and sections 7 and 8

commence on the day on which this Act receives the Royal Assent.".

After clause 2, page 2, insert the following clause:

Insertion of new section

"2A.(1) After section 38 of the Principal Act the following section is

inserted:

Additional commercial television licences in single markets

Circumstances in which existing licensee may apply for additional

licence

"38A.(1) If:

(a) a particular licence area is the licence area of only one

commercial television broadcasting licence (the "parent

licence") that is in force; and

(b) additional commercial television broadcasting licences can be

allocated for the licence area;

the existing licensee may apply in writing to the ABA for an additional

commercial television broadcasting licence for the licence area.

Circumstances in which ABA must grant additional licence

"(2) The ABA must allocate an additional commercial television

broadcasting licence to the existing licensee for the licence area, if

the ABA is satisfied that it is unlikely that another person:

(a) would be interested in operating another commercial television

broadcasting service in the licence area; and

(b) would be in a position to operate that other service.

"(3) If the ABA is not satisfied as mentioned in subsection (2), the

ABA must refuse to allocate the additional licence.

Decision period for ABA's decision

"(4) The ABA must make a decision on the application within the period

of 45 days after the application is made (the "decision period"). If

the ABA has not refused to allocate the additional licence by the end

of the decision period, the ABA is taken to have decided to allocate

the licence, and must allocate it as soon as practicable after the end

of the decision period.

"(5) However:

(a) the ABA is not required to consider the application under this

section during the allocation period in relation to an

advertisement published by the ABA under section 38 in relation

to the same licence area; and

(b) that allocation period is not to be counted in working out when

the decision period ends.

Application for additional licence lapses in certain circumstances

"(6) If a licence for the same licence area is allocated under section

36 after the application is made under this section and before the ABA

makes its decision on the application under this section, then the

application under this section is taken to have been withdrawn.

Amalgamation of licence areas in some cases

"(7) If:

(a) more than 30% of the licence area population of a licence area

is attributable to an overlap area; or

(b) a licence area is entirely within another licence area;

this section applies as if the 2 licence areas were one.

Fee for additional licence

"(8) On allocation of the additional licence, the applicant must pay

to the ABA a fee determined by the ABA. The fee must not be more than

the amount that, in the opinion of the ABA, represents the costs

(including planning costs) incurred by the ABA in allocating the

additional licence.

Licence conditions

"(9) On the allocation of the additional licence, it becomes a

condition of both the parent licence and the additional licence that

the licensee will continue to provide services under those licences

for at least 2 years after the date of allocation of the additional

licence.

Restrictions on transfer of licences

"(10) During the period of 2 years after the date of allocation of the

additional licence, any attempt by any person to transfer either the

parent licence or the additional licence is of no effect unless both

of those licences are transferred at the same time by the same person

to the same transferee.

Section 37 restrictions apply

"(11) This section has effect subject to section 37.

Interpretation

"(12) In this section:

"allocation period" means the period starting on the day on which the

ABA advertises under section 38 for applications for licences and ending

on:

(a) the day on which the last application is determined; or

(b) if no applications are received--the day specified by the ABA in

the advertisement as the day by which applications are to be

lodged.'.

"(2) If the ABA granted a permission to a licensee under section 73 of

the Principal Act before the commencement of this section:

(a) the ABA must grant an additional licence to the licensee under

section 38A of the Principal Act for the same licence area; and

(b) the licensee is not required to pay a fee under section 38A of

the Principal Act for the additional licence; and

(c) subsections 38A(9) and (10) of the Principal Act do not apply to

the additional licence or parent licence.".

After clause 2A, page 2, insert the following clause:

Repeal of section 39 and substitution of new section

"2B. Section 39 of the Principal Act is repealed and the following

section is substituted:

Additional commercial radio licences in single markets

Conditions for allocation of additional licence

"39.(1) If:

(a) a particular licence area is the licence area of only one

commercial radio broadcasting licence (the "parent licence")

that is in force; and

(b) a service is being provided under the parent licence; and

(c) the licence area for the parent licence does not have an

excessive overlap area, as determined under subsection (5); and

(d) the licensee requests the ABA, in writing, to allocate to the

licensee, for the same licence area, another commercial radio

broadcasting licence that is a broadcasting services bands

licence; and

(e) in the opinion of the ABA, suitable broadcasting services bands

spectrum is available for providing another commercial radio

broadcasting service in the same licence area;

the ABA must allocate an additional licence to the applicant for the

same licence area as soon as practicable.

Time limit for applications

"(2) An application under subsection (1) must be made within 60 days

after:

(a) the commencement of this section; or

(b) the time when paragraphs (1)(a), (b) and (c) are first satisfied

in relation to the parent licence;

whichever is later.

"(3) If the conditions in paragraphs (1)(a), (b), (c) and (e) are not

all satisfied at the time when the application is made, but at a later

time they are all satisfied, then the ABA is under an obligation at

that later time to allocate the additional licence (unless the

application has been withdrawn).

Matters that ABA must take into account

"(4) The matters that the ABA must take into account in forming an

opinion for the purposes of paragraph (1)(e) include the following:

(a) any relevant plan under section 25;

(b) any relevant plan under section 26;

(c) any relevant capacity that has been reserved under section 31.

Excessive overlap area

"(5) The licence area for the parent licence has an excessive overlap

area if:

(a) more than 30% of the licence area population of the licence area

of the parent licence is attributable to an area that overlaps

with the licence area of another commercial radio broadcasting

licence; and

(b) at least one of the following situations exists:

(i) more than 30% of the licence area population of the licence

area of that other licence is also attributable to the area

that overlaps with the licence area of the parent licence;

(ii) more than one commercial radio broadcasting licence is in

force with the same licence area as that other licence.

Technical specifications for additional licence

"(6) The ABA must make a determination in writing setting out the

technical specifications that apply to the additional licence. The ABA

is not required to make the determination if a plan under section 26

applies to the licence area of the additional licence.

"(7) For the purposes of this Act and section 109 of the

Radiocommunications Act 1992, the technical specifications are taken

to have been determined under section 26 of this Act.

Fee for additional licence

"(8) On allocation of the additional licence, the applicant must pay

to the ABA a fee determined by the ABA. The fee must not be more than

the amount that, in the opinion of the ABA, represents the costs

(including planning costs) incurred by the ABA in allocating the

additional licence.

Licence conditions

"(9) On the allocation of the additional licence, it becomes a

condition of both the parent licence and the additional licence that

the licensee will continue to provide services under those licences

for at least 2 years after the date of allocation of the additional

licence.

Restrictions on transfer of licences

"(10) During the period of 2 years after the date of allocation of the

additional licence, any attempt by any person to transfer either the

parent licence or the additional licence is of no effect unless both

of those licences are transferred at the same time by the same person

to the same transferee.

Section 37 restrictions apply

"(11) This section has effect subject to section 37.

Section 29 does not apply in some cases

"(12) If the licence area of the parent licence is not provided for

under a licence area plan under section 26, then section 29 does not

apply to the allocation of the additional licence.'.".

After clause 2B, page 2, insert the following clause:

Foreign person not to be in position to control commercial television

broadcasting licence

"2C. Section 57 of the Principal Act is amended by omitting subsection

(2).".

After clause 2C, page 2, insert the following clause:

Repeal of section 73 and substitution of new section

"2D. Section 73 of the Principal Act is repealed and the following

section is substituted:

Additional licence under section 38A not to result in breach of

ownership limits

Exemption from ownership limits

"73.(1) If an additional licence has been allocated under section 38A

to the holder of an existing licence, the existing licence and

additional licence are to be treated for the purposes of this Part as

being only one licence during the following periods:

(a) the period of 5 years after the date of allocation of the

additional licence; and

(b) any additional period granted by the ABA under this section.

Cessation of exemption

"(2) This section does not apply to the licences at any time after the

licences are first held by different persons (whether or not they

continue to be held by different persons).

Extension of exemption period

"(3) The licensee may apply to the ABA in writing for an additional

period. The application must be made between 3 and 6 months before the

end of the current period that applies under subsection (1).

"(4) If the ABA is satisfied that it is unlikely that another person:

(a) would be interested in operating a second commercial television

broadcasting service in the same licence area; and

(b) would be in a position to operate that second service;

the ABA may, in writing, grant an additional period of not more than 5

years.

"(5) If, within 45 days after the application is made, the ABA does

not either:

(a) refuse to grant an extension; or

(b) grant an extension of a specified period;

the ABA is taken to have granted an additional period of 5 years.

"(6) There is no limit to the number of additional periods that may be

granted.'.".

After clause 2D, page 2, insert the following clause:

Register of matters under this Part

"2E. Section 75 of the Principal Act is amended:

(a) by inserting before paragraph (1)(a) the following paragraph:

"(aa) licences granted under section 38A; and';

(b) by omitting from paragraph (1)(f) "approvals given' and

substituting "additional periods granted'.".

Clause 3, page 2, paragraph (b), after proposed subsection (1A) insert

the following subsection:

" "(1B) Subject to subsection (2), an event specified in a notice

under subsection (1) is taken to be removed from the notice 168 hours

after the end of the event, unless the Minister publishes in the

Gazette before that time a declaration that the event continues to be

specified in the notice after that time.".

Clause 3, page 2, paragraph (c), line 29, omit the paragraph, substitute

the following paragraph:

"(c) by omitting subsection (3) and substituting:

"(3) Notices and declarations under this section are disallowable

instruments for the purposes of section 46A of the Acts

Interpretation Act 1901.'.".

At end of bill, page 2, add the following clause:

Certain arrangements not to result in control or in persons being

associates

"4. Section 116 of the Principal Act is amended by omitting

subsections (1) and (2) and substituting the following subsections:

"(1) A person who is in a position to exercise control of a satellite

subscription television broadcasting licence is not taken to be in a

position to exercise control of another satellite subscription

television broadcasting licence only because of a provision of a

contract, arrangement or understanding under which all or any of the

following things are done:

(a) a subscriber management system is provided for subscribing to

either or both of the subscription television broadcasting

services being provided under those licences;

(b) the subscription television broadcasting services being provided

under those licences are marketed on a joint basis;

(c) joint use is made of facilities for:

(i) transmitting programs; or

(ii) the operation of disabling devices for restricting access

to certain programs;

(d) such other things as are prescribed.

"(2) Subsection (1) does not apply to a contract, arrangement or

understanding under which, or as a result of which, a person who is in

a position to exercise control of a satellite subscription television

broadcasting service comes to be in a position to exercise control

(whether directly or indirectly) of the selection or provision of a

significant proportion of the programs broadcast by another satellite

subscription television broadcasting licensee.'.".

At end of bill, page 2, add the following clause:

Appeals to the Administrative Appeals Tribunal

"5. Section 204 of the Principal Act is amended:

(a) by inserting the following row after the row in the table that

relates to subsection 6(3):

"

Refusal to allocate an Section 38A The licensee

additional licence

';

(b) by omitting from the table the rows that relate to subsections

73(2) and 73(3) and substituting the following row:

"

Refusal to grant an Section 73 The licensee

additional period '.".

At end of bill, page 2, add the following clause:

Control--general

"6.(1) Schedule 1 to the Principal Act is amended:

(a) by inserting in the first paragraph of subclause 1(1)

"subscription television broadcasting licences,' after "radio

broadcasting licences,';

(b) by omitting from the second paragraph of subclause 1(1)

"commercial broadcasting'.

"(2) Schedule 1 to the Principal Act is amended:

(a) by omitting the 4th, 5th and 6th paragraphs of subclause 1(1)

and substituting:

"A person who has company interests exceeding 15% in a company is

regarded as being in a position to control the company.';

(b) by omitting from subclause 6(1) ", in the absence of proof to

the contrary,';

(c) by omitting subclause 6(2);

(d) by omitting from clause 7 "can still be expected to be' and

substituting "is to be regarded as being';

(e) by omitting from clause 7 "could ordinarily be expected to be'

and substituting "is to be regarded as being';

(f) by omitting from clause 7 all the words from and including "This

would, of course' to the end of the clause;

(g) by omitting from clause 8 "prima facie'.".

At end of bill, page 2, add the following clause:

Conditions applicable to subscription television broadcasting licences

"7. Clause 10 of Schedule 2 to the Principal Act is amended:

(a) by omitting paragraph (1)(e) and substituting:

"(e) the licensee will not acquire the right to televise, on a

subscription television broadcasting service, an event that

is specified in a notice under subsection 115(1) unless:

(i) a national broadcaster has the right to televise the

event on its broadcasting service; or

(ii) the television broadcasting services of commercial

television broadcasting licensees who have the right to

televise the event cover a total of more than 50% of

the Australian population;';

(b) by inserting after subclause (1):

"(1A) For the purposes of subparagraph (1)(e)(ii), the percentage

of the Australian population covered by the television

broadcasting service of a commercial television broadcasting

licensee is the percentage most recently specified by the ABA

under paragraph 30(5)(a) for the licence area of the licensee's

licence.

"(1B) For the purposes of subparagraph (1)(e)(ii), if a program

supplier for a commercial television broadcasting licensee has a

right to televise an event, the licensee is taken also to have the

right. For this purpose, "program supplier" means a person who:

(a) has an agreement to supply the licensee with program

material that can be televised on the licensee's commercial

television broadcasting service (whether or not the program

material includes matter showing the event); and

(b) supplies the licensee with a substantial proportion of all

the program material that is televised on the licensee's

commercial television broadcasting service (whether or not

the material is supplied under the agreement mentioned in

paragraph (a)).'.".

At end of bill, page 2, add the following clause:

Application

"8. The amendments of clause 10 of Schedule 2 of the Principal Act

extend to subscription television broadcasting licences issued before

the commencement of this Act.".

At end of bill, page 2, add the following clause:

Grandfathering for changes to the control rules

"9.(1) If:

(a) apart from this section, a person (the "relevant person') would

be in breach of a particular control rule at a particular time

(the "test time') after the commencement of this section; and

(b) all the circumstances that are relevant to the breach were in

existence at the end of 27 June 1995 (the "grandfather time');

and

(c) the relevant person would not be in breach of that control rule

at the test time if the amendments made by section 2C and

subsection 6(2) of this Act had not been made; and

(d) the relevant person was not in breach of that control rule

immediately before the grandfather time;

then the relevant person is taken not to be in breach of that control

rule at the test time.

"(2) If:

(a) particular circumstances that are relevant to the breach arose

after the grandfather time; and

(b) the relevant person was not in a position to prevent those

circumstances arising;

those circumstances are taken for the purposes of subsection (1) to have

been in existence at the grandfather time.

"(3) If:

(a) particular circumstances (the "new circumstances') that are

relevant to the breach resulted from the allotment or issue,

after the grandfather time, of shares (the "new shares') in a

company to a person (the "recipient') who, immediately before

the grandfather time, held shares (the "old shares') in the

company; and

(b) the recipient received the new shares in accordance with rights

of a kind enjoyed by the recipient in common with other holders

of shares of the same class as the old shares;

the new circumstances are taken for the purposes of subsection (1) to

have been in existence at the grandfather time.

"(4) If:

(a) particular circumstances that are relevant to the breach consist

of the holding by a person of company interests in a company

that are greater than the company interests in that company that

were held by that person at the grandfather time; and

(b) that person was in a position to control that company

immediately before the grandfather time, and at all times from

the grandfather time to the test time;

those circumstances are taken for the purposes of subsection (1) to have

been in existence at the grandfather time. For the purposes of this

subsection, the question whether a person is in a position to control a

company is to be determined in accordance with the Principal Act as in

force immediately before the commencement of this section, but without

regard to clause 6 of Schedule 1 to the Principal Act.

"(5) In this section:

"circumstances that are relevant to the breach' includes the holding of

all company interests in any company by any person, so far as the

company interests can be relied on in establishing the breach, including

company interests that do not have to be relied on to establish the

breach;

"control rule' means:

(a) a provision of Division 2, 3, 4 or 5 of Part 5 of the Principal

Act; and

(b) a provision of Division 3 of Part 7 of the Principal Act (other

than section 109);

"shares' means shares in, or debentures of, a company.".

At end of bill, page 2, add the following clause:

Compensation for acquisition of property

"10.(1) If:

(a) this Act, or the Principal Act as amended by this Act, would

result in an acquisition of property; and

(b) the whole or any part of this Act, or of the Principal Act as

amended by this Act, would not be valid (apart from this

section) because a particular person has not been compensated;

the Commonwealth must pay the person:

(c) a reasonable amount of compensation agreed on between the person

and the Commonwealth; or

(d) failing agreement--a reasonable amount of compensation

determined by a court of competent jurisdiction.

"(2) Any damages or compensation recovered, or other remedy given, in a

proceeding begun otherwise than under this section must be taken into

account in assessing compensation payable in a proceeding begun under

this section and arising out of the same event or transaction.

"(3) In this section:

"acquisition of property' has the same meaning as in paragraph 51(xxxi)

of the Constitution.".

Debate ensued.

At 12.45 p.m.: The Acting Deputy President (Senator Herron) resumed the

Chair and the Chairman of Committees (Senator Reid) reported progress.