Commonwealth Numbered Acts

BROADCASTING LEGISLATION AMENDMENT ACT 1988 No. 146 of 1988 - SECT 34

34. (1) Sections 89A, 89B and 89C of the Principal Act are repealed and the
following sections are substituted: Transfer of commercial licences

"89A. (1) Subject to subsections (2), (3) and (4), the holder of a commercial
licence may:

   (a)  transfer the licence to another person; or

   (b)  admit another person to participate in any of the benefits of the
        licence or to exercise any of the powers or authorities granted by the
        licence; but only with the written consent of the Tribunal.

"(2) A commercial licence shall not be transferred to a person if the person
would, by virtue of subsection 81AA (1), be ineligible for the grant of the
licence.

"(3) A person shall not be admitted to participate in any of the benefits of a
commercial licence, or to exercise any of the powers or authorities granted by
a commercial licence, if the person would be ineligible for the grant of the
licence under subsection 81AA (1).

"(4) A commercial licence shall not be transferred to a person, and a person
shall not be admitted to participate in any of the benefits of a commercial
licence or to exercise any of the powers or authorities granted by a
commercial licence, before the end of the period of 2 years commencing on the
day of commencement of the licence.

"(5) Subsection (4) does not apply to:

   (a)  the grant of a commercial radio licence or of a commercial television
        licence under section 99 or 99A of the
        Broadcasting and Television Amendment  Act 1985 ; or

   (b)  the grant of a commercial television licence pursuant to section 94ZC
        or 94ZG of this Act.

"(6) A person to whom the holder of a commercial licence proposes to transfer
the licence shall give a written undertaking to the Tribunal in the same terms
as an undertaking required to be given under subsection 83 (1).

"(7) The Tribunal shall not refuse to give consent to the transfer of a
commercial licence unless it is required to do so by subsection (8) or (10).

"(8) The Tribunal shall refuse to give consent to the transfer of a commercial
licence to a person if:

   (a)  the person has failed to give an undertaking under subsection (6);

   (b)  the Tribunal is satisfied that the giving of the consent 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 consent:

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

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

        (ii)   if the licence's service area:

                (A)  is not a metropolitan service area; and

                (B)  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; or

   (d)  the circumstances are such that, if the Tribunal gave consent:

        (i)    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;

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

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

"(9) For the purposes of paragraph (8) (d), 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 transfer of the licence, the person
        will take all reasonable steps with a view to causing the
        contravention to cease; or

   (b)  in the case of a contravention by a person other than the
        transferee-the contravention will not result in the person being,
        within the meaning of Part IIIBA, in a position to control the
        transferee.

"(10) The Tribunal shall refuse to give consent to the transfer to a person of
a commercial radio licence that is related to a supplementary radio licence
unless the supplementary radio licence is transferred to the person at the
same time. Transfer of supplementary radio licences

"89B. (1) The holder of a supplementary radio licence may:

   (a)  transfer the licence to another person; or

   (b)  admit another person to participate in any of the benefits of the
        licence or to exercise any of the powers or authorities granted by the
        licence; but only with the written consent of the Tribunal.

"(2) A person to whom the holder of a supplementary radio licence proposes to
transfer the licence shall give a written undertaking to the Tribunal in the
same terms as an undertaking required to be given under subsection 83 (1).

"(3) The Tribunal shall not refuse to give consent to the transfer of a
supplementary radio licence unless it is required to do so by subsection (4)
or (5).

"(4) The Tribunal shall refuse to give consent to the transfer of a
supplementary radio licence to a person if:

   (a)  the person has failed to give an undertaking under subsection (2);

   (b)  the Tribunal is satisfied that the giving of the consent would be
        contrary to a provision of this Act; or

   (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 consent:

        (i)    it is not satisfied that the person is a fit and proper person
               to hold the licence;

        (ii)   it is not satisfied that the person has the financial,
               technical and management capabilities necessary to provide an
               adequate and comprehensive service pursuant to the licence;

        (iii)  it is not satisfied that the person is otherwise capable of
               complying with the conditions of the licence.

"(5) The Tribunal shall refuse to give consent to:

   (a)  the transfer of a supplementary radio licence by the licensee to
        another person; or

   (b)  the admission by the licensee of a supplementary radio licence or, if
        the licence is held by 2 or more persons as co-owners, by any of those
        persons, of another person to participate in any of the benefits of
        the licence or to exercise any of the powers or authorities granted by
        the licence; unless that other person is the holder of a commercial
        radio licence and the whole or a substantial part of the service area
        of that commercial radio licence is coextensive with the whole or a
        substantial part of the service area of the supplementary radio
        licence.

"(6) In relation to a supplementary radio licence held by 2 or more persons as
co-owners, the references in this section to the transfer by the licensee of
the licence shall be read as references to the transfer by any of those
persons of the whole of the person's interest in the licence. Transfer of
public licences

"89C. (1) Subject to subsection (3), the holder of a public licence may admit
another person to participate in any of the benefits of the licence or to
exercise any of the powers or authorities granted by the licence, but only
with the written consent of the Tribunal.

"(2) A public licence may not be transferred.

"(3) A person shall not be admitted to participate in any of the benefits of a
public licence, or to exercise any of the powers or authorities granted by a
public licence, if the person would be ineligible for the grant of the licence
under subsection 81AA (2) or (3). Transfer of remote licences

"89CA. (1) The holder of a remote licence may:

   (a)  transfer the licence to another person; or

   (b)  admit another person to participate in any of the benefits of the
        licence or to exercise any of the powers or authorities granted by the
        licence; but only with the written consent of the Tribunal.

"(2) A person to whom the holder of a remote licence proposes to transfer the
licence shall give a written undertaking to the Tribunal in the same terms as
an undertaking required to be given under subsection 83 (1).

"(3) The Tribunal shall not refuse to give consent to the transfer of a remote
licence unless it is required to do so by subsection (4).

"(4) The Tribunal shall refuse to give consent to the transfer of a remote
licence to a person if:

   (a)  the person has failed to give an undertaking under subsection (2);

   (b)  the Tribunal is satisfied that the giving of the consent would be
        contrary to a provision of this Act; or

   (c)  it appears to the Tribunal, having regard to the following matters or
        circumstances, that it is advisable in the public interest to refuse
        consent:

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

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

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

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

                (B)  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;

        (iii)  the likelihood that, if the Tribunal gave consent, 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;

        (iv)   any relevant government policy statements;

        (v)    any matters prescribed by regulations for the purposes of this
               paragraph;

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

"(5) In relation to a remote licence held by 2 or more persons as co-owners,
the references in this section to the transfer by the licensee of the licence
shall be read as references to the transfer by any of those persons of the
whole of the person's interest in the licence. Transfer of limited licence

"89CB. (1) The holder of a limited licence may:

   (a)  transfer the licence to another person; or

   (b)  admit another person to participate in any of the benefits of the
        licence or to exercise any of the powers or authorities granted by the
        licence; but only with the written consent of the Tribunal.

"(2) Where the Tribunal is asked to consent to the transfer of a limited
licence to a person, the Tribunal may ask the person to give the Tribunal a
written statement that sets out an outline of the content and format of the
programs that the person intends to broadcast if the licence is transferred to
the person.

"(3) A request under subsection (2) shall be in writing.

"(4) The Tribunal shall not give its consent under subsection (1) to the
transfer of a limited licence to a person if it 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 give the consent.

"(5) In deciding whether to consent to the transfer of a limited licence to a
person, the Tribunal may have regard to:

   (a)  any outline provided by the person in accordance with subsection (2);

   (b)  any failure by the person to provide an outline in accordance with
        subsection (2);

   (c)  the likelihood that if the Tribunal gave consent, 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.

"(6) A limited licence shall not be transferred to a person if the person
would, by virtue of subsection 81AA (5), be ineligible for the grant of the
licence. Effect of transfer etc. of licence

"89CC. (1) Where, with the written consent of the Tribunal, a licensee
transfers the licence to another person, that person shall be deemed to become
the licensee to the exclusion of the former licensee.

"(2) Where, with the written consent of the Tribunal, a licensee admits
another person to participate in any of the benefits of the licence or to
exercise any of the powers or authorities granted by the licence, this Act
applies as if every reference in this Act (except in subsection (3)) to a
licensee or to the holder of a licence included a reference to that person.

"(3) The performance by the licensee or the other person referred to in
subsection (2) of an obligation imposed upon the licensee by the licence or by
this Act shall, to the extent of that performance, be deemed to release both
the licensee and that person from the obligation.".

(2) Where the Tribunal had, before the commencement of this subsection, given
a consent under section 89A of the Principal Act, the consent has effect,
after the commencement of this subsection, as if it had been given:

   (a)  where the consent relates to a commercial licence-under section 89A of
        the amended Act;

   (b)  where the consent relates to a supplementary radio licence-under
        section 89B of the amended Act;

   (c)  where the consent relates to a public licence-under section 89C of the
        amended Act; or

   (d)  where the consent relates to a remote licence-under section 89CA of
        the amended Act.

(3) In subsection (2):

"amended Act" means the Principal Act as amended by subsection (1).