Commonwealth Numbered Acts

BROADCASTING LEGISLATION AMENDMENT ACT 1988 No. 146 of 1988 - SECT 27

27. Section 83 of the Principal Act is repealed and the following sections are
substituted: Undertaking

"83. (1) An applicant for the grant of a licence shall, before the licence is
granted, give a written undertaking to the Tribunal that the applicant will,
if granted the licence:

   (a)  comply with the conditions of the licence;

   (b)  provide an adequate and comprehensive service pursuant to the licence;

   (c)  encourage the provision of programs wholly or substantially produced
        in Australia; and

   (d)  use, and encourage the use of, Australian creative resources in
        connection with the provision of programs.

"(2) Subsection (1) does not apply to a limited licence. Criteria for grant of
commercial licence

"83A. (1) The Tribunal shall not refuse to grant a commercial licence to a
person unless it is required to do so by subsection (2), (3), (4), (5), (7),
(9) or (10).

"(2) The Tribunal shall refuse to grant a commercial licence to a person if
the person has failed to give an undertaking in accordance with subsection 83
(1).

"(3) The Tribunal shall refuse to grant a commercial licence to a person if
the Tribunal is satisfied that the grant of the licence would be contrary to a
provision of this Act.

"(4) The Tribunal shall refuse to grant a commercial licence to a person if 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:

   (a)  the Tribunal is not satisfied that the person:

        (i)    is a fit and proper person to hold the licence;

        (ii)   has the financial, technical and management capabilities
               necessary to provide an adequate and comprehensive service
               pursuant to the licence; and

        (iii)  is otherwise capable of complying with the conditions of the
               licence;

   (b)  if the licence's service area:

        (i)    is not a metropolitan service area; and

        (ii)   overlaps the service area of at least one other commercial
               licence whose service area is also not a metropolitan service
               area;
the need to avoid undue concentration of influence, whether direct or
indirect, on the person and on the corporation or corporations holding the
other licence or licences;

   (c)  where the service area of the licence overlaps the service area of
        another non-limited licence or other non-limited licences-the need for
        the commercial viability of the service or services provided pursuant
        to the other licence or other licences.

"(5) The Tribunal shall refuse to grant a commercial licence to a person if it
appears to the Tribunal that a licence of the kind contemplated by the matters
(other than the outline of the technical conditions proposed to be included in
the licence warrant) set out in the notice under paragraph 82 (1) (a) should
not be granted.

"(6) The reference in subsection (5) to the matters set out in the notice
under paragraph 82 (1) (a) is a reference to such matters as affected by any
determination under subsection 83F (1).

"(7) Subject to subsection (8), the Tribunal shall refuse to grant a
commercial licence to a person if the circumstances are such that, if the
Tribunal granted the licence to the person:

   (a)  the Tribunal would have reasonable grounds for believing that a person
        would be contravening section 90C, 92 or 92JB in circumstances that
        would constitute an offence against that section;

   (b)  a person would be contravening section 90F, 92C or 92JD; or

   (c)  a condition specified in section 90G or 92D would be contravened.

"(8) For the purposes of subsection (7), the Tribunal may disregard a
contravention of section 90C, 92 or 92JB by a person if 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 Part IIIBA, in a position to control the company to which
        the licence is to be granted.

"(9) Subject to subsection (10), where there are 2 or more applicants for a
commercial licence, each of whom is a person to whom, but for this subsection,
the Tribunal would be required to grant the licence, the Tribunal shall grant
the licence to the most suitable applicant.

"(10) Where the licence is a commercial radio licence, the following
provisions have effect:

   (a)  the Tribunal shall give the eligible applicant who, in the opinion of
        the Tribunal, is the most suitable applicant notice in writing that
        the licence is available to that applicant;

   (b)  if an applicant who is given notice under paragraph (a) or (c) tenders
        to the Commonwealth, before the end of the relevant period, an amount
        equal to the amount of the establishment fee, the Tribunal shall grant
        the licence to that applicant;

   (c)  if an applicant who is given notice under paragraph (a) or this
        paragraph does not tender to the Commonwealth, before the end of the
        relevant period, an amount equal to the amount of the establishment
        fee and there is at least one other eligible applicant:

        (i)    the application by the applicant given that notice shall be
               deemed to have been withdrawn; and

        (ii)   the Tribunal shall give the remaining eligible applicant, or
               the one of the remaining eligible applicants who, in the
               opinion of the Tribunal, is the most suitable applicant, notice
               in writing that the licence is available to that applicant;

   (d)  if an applicant who is given notice under paragraph (a) or (c) does
        not tender to the Commonwealth, before the end of the relevant period,
        an amount equal to the amount of the establishment fee, the Minister
        may:

        (i)    determine that, even though the relevant period has ended, the
               licence shall continue to be available to that applicant for
               such further period as is specified in the determination; or

        (ii)   determine that a fresh notice under subsection 82 (1) should be
               published in relation to the proposed grant of the licence;

   (e)  if a determination is made under subparagraph (d) (i) in relation to
        an applicant and the applicant, before the end of the further period
        specified in the determination, tenders to the Commonwealth, an amount
        equal to the sum of:

        (i)    the amount of the establishment fee; and

        (ii)   the amount of any late payment charge payable under paragraph
               (f);
the Tribunal shall grant the licence to the applicant;

   (f)  where an applicant in relation to whom a determination under
        subparagraph (d) (i) has been made tenders to the Commonwealth, after
        the end of the relevant period, an amount in respect of the
        establishment fee, an additional fee is due and payable by way of
        penalty by the applicant at the rate of 20% per annum on the amount
        tendered, computed from the end of the relevant period until the day
        on which the amount is tendered;

   (g)  if a determination is made under subparagraph (d) (i) in relation to
        an applicant and the applicant does not tender to the Commonwealth,
        before the end of the further period specified in the determination,
        an amount equal to the sum of the amounts specified in subparagraphs
        (e) (i) and (ii), the Minister may determine that a fresh notice under
        subsection 82 (1) should be published in relation to the proposed
        grant of the licence.

"(11) In subsection (10):
'eligible applicant', in relation to the grant of a commercial radio licence,
means a person to whom, but for subsection (9), the Tribunal would be required
to grant the licence;
'establishment fee', in relation to the grant of a commercial radio licence,
means the fee payable on the grant of the licence under subsection 6 (1A) of
the Radio Licence Fees Act 1964;
'relevant period', in relation to an applicant who is given notice under
paragraph (10) (a) or (c), means:

   (a)  the period of 60 days commencing on the day on which the notice is
        given; or

   (b)  if, before the end of that period, legal proceedings are commenced to
        challenge the giving of the notice or to prevent the granting of the
        licence to the applicant-the period of 30 days commencing on the day
        after the termination of all such proceedings (whether commenced
        before or after the end of the period referred to in paragraph (a));
'termination' includes termination by way of withdrawal or final determination
and, when used in relation to legal proceedings, includes the termination of
any appeal arising out of those proceedings. Criteria for grant of
supplementary radio licence

"83B. (1) The Tribunal shall not refuse to grant a supplementary radio licence
to a person unless it is required to do so by subsection (2), (3), (4), (5) or
(7).

"(2) The Tribunal shall refuse to grant a supplementary radio licence to a
person if the person has failed to give an undertaking in accordance with
subsection 83 (1).

"(3) The Tribunal shall refuse to grant a supplementary radio licence to a
person if the Tribunal is satisfied that the grant of the licence would be
contrary to a provision of this Act.

"(4) The Tribunal shall refuse to grant a supplementary radio licence to a
person if 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:

   (a)  the Tribunal is not satisfied that the person:

        (i)    is a fit and proper person to hold the licence;

        (ii)   has the financial, technical and management capabilities
               necessary to provide an adequate and comprehensive service
               pursuant to the licence; and

        (iii)  is otherwise capable of complying with the conditions of the
               licence;

   (b)  where the licence's service area overlaps the service area of another
        non-limited licence or other non-limited licences-the need for the
        commercial viability of the service or services provided pursuant to
        the other licence or licences.

"(5) The Tribunal shall refuse to grant a supplementary radio licence to a
person if it appears to the Tribunal that a licence of the kind contemplated
by the matters (other than the outline of the technical conditions proposed to
be included in the licence warrant) set out in the notice under paragraph 82A
(4) (a) should not be granted.

"(6) The reference in subsection (5) to the matters set out in the notice
under paragraph 82A (4) (a) is a reference to such matters as affected by any
determination under subsection 83F (1).

"(7) The Tribunal shall refuse to grant a supplementary radio licence to a
person if the Tribunal, having due regard to the need for the commercial
viability of radio services provided pursuant to other non-limited licences
that have service areas that overlap the service area of the supplementary
radio licence, determines:

   (a)  that an additional radio service provided pursuant to a commercial
        radio licence having the same service area as that of the
        supplementary licence is reasonably likely to be commercially viable
        during the period in which the supplementary licence, if granted,
        would be in force; and

   (b)  that, having considered:

        (i)    the need for an adequate and comprehensive service to be
               provided pursuant to such an additional licence; and

        (ii)   whether, in the Tribunal's opinion, there is or would, if the
               supplementary licence were granted, be an undue concentration
               of the ownership or control, direct or indirect, of the media
               in the service area of the supplementary radio licence;
it is in the public interest that applications for such a commercial radio
licence should be invited.

"(8) The Tribunal shall, as soon as practicable after making a determination
under subsection (7):

   (a)  inform the applicant and the Minister, by notice in writing, of the
        determination and the reasons for the determination; and

   (b)  make a written recommendation to the Minister that the Minister invite
        applications for a commercial radio licence to serve the area that
        would have been the service area of the supplementary radio licence.
        Criteria for grant of public licence

"83C. (1) The Tribunal shall not refuse to grant a public licence to a person
unless it is required to do so by subsection (2), (3), (4), (5) or (7).

"(2) The Tribunal shall refuse to grant a public licence to a person if the
person has failed to give an undertaking in accordance with subsection 83 (1).

"(3) The Tribunal shall refuse to grant a public licence to a person if the
Tribunal is satisfied that the grant of the licence would be contrary to a
provision of this Act.

"(4) The Tribunal shall refuse to grant a public licence to a person if 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:

   (a)  the Tribunal is not satisfied that the person:

        (i)    is a fit and proper person to hold the licence;

        (ii)   has the financial, technical and management capabilities
               necessary to provide an adequate and comprehensive service
               pursuant to the licence; and

        (iii)  is otherwise capable of complying with the conditions of the
               licence;

   (b)  where the service area of the licence overlaps the service area of
        another non-limited licence or other non-limited licences-the need for
        the commercial viability of the service or services provided pursuant
        to the other licence or other licences;

   (c)  the undesirability of a person being in a position to exercise
        control, within the meaning of Division 6 of Part IIIBA, of more than
        one public radio licence or more than one public television licence;

   (d)  the undesirability of:

        (i)    the Commonwealth, a State or the Northern Territory or a
               statutory authority of the Commonwealth, a State or a
               Territory; or

        (ii)   a political party;
being in a position to exercise control, within the meaning of Division 6 of
Part IIIBA, of a public licence;

   (e)  the undesirability of a public licence being held by a corporation
        whose operations pursuant to the licence will be conducted, either
        wholly or substantially, for the purpose of the acquisition by another
        person of profit or gain;

   (f)  the desirability of members of the community to be served pursuant to
        a public licence being in a position to exercise control of the
        licence;

   (g)  the need to encourage members of the community to be served pursuant
        to a public licence to participate in:

        (i)    the operations of the licensee in providing the service
               pursuant to the licence; and

        (ii)   the selection and provision of programs to be broadcast
               pursuant to the licence.

"(5) The Tribunal shall refuse to grant a public licence to a person if it
appears to the Tribunal that a licence of the kind contemplated by the matters
(other than the outline of the technical conditions proposed to be included in
the licence warrant) set out in the notice under paragraph 82 (1) (a) should
not be granted.

"(6) The reference in subsection (5) to the matters set out in the notice
under paragraph 82 (1) (a) is a reference to such matters as affected by any
determination under subsection 83F (1).

"(7) Where there are 2 or more applicants for a public licence, each of whom
is a person to whom, but for this subsection, the Tribunal would be required
to grant the licence, the Tribunal shall grant the licence to the most
suitable applicant. Criteria for grant of remote licence

"83D. (1) The Tribunal shall not refuse to grant a remote licence to a person
unless it is required to do so by subsection (2), (3), (4), (5) or (7).

"(2) The Tribunal shall refuse to grant a remote licence to a person if the
person has failed to give an undertaking in accordance with subsection 83 (1).

"(3) The Tribunal shall refuse to grant a remote licence to a person if the
Tribunal is satisfied that the grant of the licence would be contrary to a
provision of this Act.

"(4) The Tribunal shall refuse to grant a remote licence to a person if it
appears to the Tribunal, having regard to the following matters or
circumstances, that it is advisable in the public interest to refuse to grant
the licence to the person:

   (a)  the Tribunal is not satisfied that the person:

        (i)    is a fit and proper person to hold the licence;

        (ii)   has the financial, technical and management capabilities
               necessary to provide an adequate and comprehensive service
               pursuant to the licence; and

        (iii)  is otherwise capable of complying with the conditions of the
               licence;

   (b)  where the service area of the licence overlaps the service area of
        another non-limited licence or other non-limited licences-the need for
        the commercial viability of the service or services provided pursuant
        to the other licence or other licences;

   (c)  subject to the desirability of ensuring that, in all parts of
        Australia, there are available:

        (i)    at least one service provided pursuant to a commercial radio
               licence or remote radio licence; and

        (ii)   at least one service provided pursuant to a commercial
               television licence or remote television licence;
the need to avoid an undue concentration of the ownership or control, direct
or indirect, of the media in the service area of the licence;

   (d)  the likelihood that, if the Tribunal granted the licence, a person
        would, in relation to the licence or the holder of the licence,
        contravene an order of the Tribunal made for the purposes of section
        92V;

   (e)  any relevant government policy statements;

   (f)  any matters prescribed by regulations for the purposes of this
        paragraph; (g) any other matters or circumstances that the Tribunal
        considers relevant.

"(5) The Tribunal shall refuse to grant a remote licence to a person if it
appears to the Tribunal that a licence of the kind contemplated by the matters
(other than the outline of technical conditions proposed to be included in the
licence warrant) set out in the notice under paragraph 82 (1) (a) should not
be granted.

"(6) The reference in subsection (5) to the matters set out in the notice
under paragraph 82 (1) (a) is a reference to such matters as affected by any
determination under subsection 83F (1).

"(7) Where there are 2 or more applicants for a remote licence, each of whom
is a person to whom, but for this subsection, the Tribunal would be required
to grant the licence, the Tribunal shall grant the licence to the most
suitable applicant. Criteria for grant of limited licence

"83E. (1) The Tribunal shall not grant a limited licence to a person if the
Tribunal is satisfied that:

   (a)  the person is not a fit and proper person to hold the licence;

   (b)  the person is not capable of complying with the conditions of the
        licence;

   (c)  any relevant matters specified by regulations made for the purposes of
        subsection 81C (1) have not been satisfied; or

   (d)  it is otherwise not in the public interest to grant the licence to the
        person.

"(2) In deciding whether to grant a limited licence to a person, the Tribunal
may have regard to:

   (a)  any outline provided by the person in accordance with section 82AC;

   (b)  any failure by the person to provide an outline in accordance with
        section 82AC;

   (c)  the likelihood that, if the Tribunal granted the licence, a person
        would, in relation to the licence or the holder of the licence,
        contravene an order of the Tribunal made for the purposes of section
        92VA; and

   (d)  any other matters or circumstances that the Tribunal considers
        relevant.

"(3) The Tribunal may refuse to grant a limited licence to a person if it
appears to the Tribunal that a licence of the kind contemplated by the matters
(other than the outline of the technical conditions proposed to be included in
the licence warrant) set out in the notice under paragraph 82AB (3) (d) or
subsection 82AB (5) should not be granted.

"(4) The reference in subsection (3) to the matters set out in the notice
under paragraph 82AB (3) (d) or subsection 82AB (5) is a reference to such
matters as affected by any determination under subsection 83F (1).

"(5) Subject to subsection (6), where there are 2 or more applicants for a
limited licence, each of whom is a person to whom, but for this subsection,
the Tribunal would be able to grant the licence, the Tribunal shall grant the
licence to the most suitable applicant.

"(6) If regulations are made under the Broadcasting (Limited Licences) Fees 
Act 1988 prescribing a fee payable on the grant of a limited licence that is
payable in accordance with a system of tendering, bidding or auction,
subsection (5) ceases to have effect in relation to that licence while those
regulations are in force and regulations may be made under this Act
prescribing the rules that are to apply to the grant of that licence where
there are 2 or more applicants for that licence, each of whom, but for the
regulations, is a person to whom the Tribunal would be able to grant that
licence. Minister may revise service specifications before grant of licence

"83F. (1) Subject to subsection (2), the Minister may, at any time before the
grant of a licence, revoke the service specifications determined in relation
to the licence under:

   (a)  subsection 82 (1);

   (b)  subsection 82A (4);

   (c)  subsection 82AB (3) or (5); or

   (d)  this subsection; and determine that the new service specifications
        specified in the determination are the service specifications to which
        the licence is to be subject.

"(2) The service specifications determined by the Minister under subsection
(1) must be substantially consistent with the service specifications
determined in relation to the licence under:

   (a)  if the licence is a supplementary licence-subsection 82A (4);

   (b)  if the licence is a limited licence-subsection 82AB (3) or (5), as the
        case requires; or

   (c)  in any other case-subsection 82 (1).

"(3) Where the Minister makes a determination under subsection (1), the
Minister shall notify the Tribunal accordingly.".