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BROADCASTING SERVICES AMENDMENT (DIGITAL TELEVISION AND DATACASTING) ACT 2000 NO. 108, 2000 - SCHEDULE 2

- Amendment of the Radiocommunications Act 1992 Part 1—Amendments

1 Section 5

Insert:

BSA datacasting licence means a datacasting licence under Schedule 6 to the Broadcasting Services Act 1992 .

2 Section 5

Insert:

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

3 Section 5 (definition of datacasting service )

Omit "Schedule 4 to".

4 Section 5

Insert:

datacasting transmitter licence means a transmitter licence for a transmitter that is for use for transmitting a datacasting service, but does not include:

(a)
a transmitter licence issued under section 102 or 102A; or

(b)
an NBS transmitter licence; or

(c)
a prescribed transmitter licence.

5 Section 5 (paragraph (b) of the definition of licensee )

Omit "the person to whom the licence was issued", substitute "the person who holds the licence".

6 Section 5

Insert:

qualified company means a company that:

(a)
is formed in Australia; and

(b)
has a share capital.

7 Section 5

Insert:

SDTV digital mode has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .

8 Subsection 96(7)

Omit "Division 6 is", substitute "Divisions 6 and 6A are".

9 Subsection 100(1)

Omit "and 102A", substitute ", 102A and 102B".

10 Subsections 100A(1A), (1B) and (1C)

Repeal the subsections, substitute:

(1A)
Subsection (1) has effect subject to subsections (1B) and (1C).

(1B)
The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service in digital mode using those channels has no effect unless the licensee holds a BSA datacasting licence authorising the provision of that service.

(1C)
The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service (other than a test transmission) in digital mode in a particular coverage area using those channels does not take effect until whichever of the following first happens:

(a)
the end of 12 months after the national broadcaster concerned was required, under a scheme in force under clause 19 of Schedule 4 to the Broadcasting Services Act 1992 , to commence transmitting the broadcasting service concerned in SDTV digital mode in the coverage area;

(b)
the first occasion on which a datacasting service (other than a test transmission in accordance with a determination under paragraph 34(1)(fa) of the Broadcasting Services Act 1992 ) was:

(i)
provided by another person under, and in accordance with the conditions of, a BSA datacasting licence; and
(ii)
transmitted under a datacasting transmitter licence;
in the coverage area.

11 Subsection 100A(2)

Insert:

coverage area has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .

12 Subsections 100B(2A), (2B) and (2C)

Repeal the subsections, substitute:

(2A)
Subsection (2) has effect subject to subsections (2B) and (2C).

(2B)
The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service in digital mode using the channel or channels concerned has no effect unless the licensee holds a BSA datacasting licence authorising the provision of that service.

(2C)
The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service (other than a test transmission) in digital mode in a particular coverage area using the channel or channels concerned does not take effect until whichever of the following first happens:

(a)
the end of 12 months after the national broadcaster concerned was required, under a scheme in force under clause 19 of Schedule 4 to the Broadcasting Services Act 1992 , to commence transmitting the broadcasting service concerned in SDTV digital mode in the coverage area;

(b)
the first occasion on which a datacasting service (other than a test transmission in accordance with a determination under paragraph 34(1)(fa) of the Broadcasting Services Act 1992 ) was:

(i)
provided by another person under, and in accordance with the conditions of, a BSA datacasting licence; and
(ii)
transmitted under a datacasting transmitter licence;
in the coverage area.

13 Subsection 100B(3)

Insert:

coverage area has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .

13A After section 100B

Insert:

100C NBS transmitter licences—authorisation of radio broadcasting services

(1)
If:

(a)
an NBS transmitter licence is or was issued to a particular national broadcaster; and

(b)
the licence authorises the operation of one or more specified radiocommunications transmitters for transmitting a national television broadcasting service in digital mode using one or more channels;

the licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting national radio broadcasting services in digital mode using those channels.

(2)
In this section:

national broadcaster has the same meaning as in the Broadcasting Services Act 1992 .

national broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .

national radio broadcasting service means a national broadcasting service that provides radio programs.

national television broadcasting service means a national broadcasting service that provides television programs.

NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service.

13B Before section 101

Insert:

100D NBS transmitter licences—authorisation of multi-channelled television broadcasting services

(1)
If:

(a)
an NBS transmitter licence is or was issued to a particular national broadcaster; and

(b)
the licence authorises the operation of one or more specified radiocommunications transmitters for transmitting a national television broadcasting service in digital mode using one or more channels; and

(c)
the national broadcaster provides, or proposes to provide, another national television broadcasting service; and

(d)
the other service is a multi-channelled national television broadcasting service;

the licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting the multi-channelled national television broadcasting service in digital mode using those channels.

(2)
In this section:

multi-channelled national television broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .

national broadcaster has the same meaning as in the Broadcasting Services Act 1992 .

national broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .

national television broadcasting service means a national broadcasting service that provides television programs.

NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service.

14 After subsection 102(2)

Insert:

(2A)
If:

(a)
a transmitter licence (the first transmitter licence ) was issued under this section; and

(b)
the first transmitter licence authorises the operation of one or more specified radiocommunications transmitters for transmitting a particular commercial television broadcasting service (the first service ) in accordance with a commercial television broadcasting licence held by a person (the first BSA licence ); and

(c)
another commercial television broadcasting licence (the additional BSA licence ) is allocated to the person under section 38A or 38B of the Broadcasting Services Act 1992 ; and

(d)
the first BSA licence and the additional BSA licence relate to the same licence area (within the meaning of whichever of those sections is applicable); and

(e)
the additional BSA licence authorises the provision of another commercial television broadcasting service (the additional service ); and

(f)
the first service and the additional service are the subject of an election under subclause 6(5A) of Schedule 4 to the Broadcasting Services Act 1992 ;

then:

(g)
despite subsection (1), the ACA is not required to issue to the person a new transmitter licence in relation to the additional service; and

(h)
the first transmitter licence is taken to authorise the operation of the transmitter or transmitters concerned for transmitting the additional service in accordance with the additional BSA licence.

15 Subsections 102(3A), (3B) and (3C)

Repeal the subsections, substitute:

(4)
Subsection (3) has effect subject to subsections (5) and (6).

(5)
The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service in digital mode using those channels has no effect unless the licensee holds a BSA datacasting licence authorising the provision of that service.

(6)
The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service in digital mode using those channels (other than a test transmission) does not take effect until whichever of the following first happens:

(a)
the end of 12 months after the holder of the related licence was required, under a scheme in force under clause 6 of Schedule 4 to the Broadcasting Services Act 1992 , to commence transmitting the broadcasting service concerned in SDTV digital mode in the licence area for the related licence;

(b)
the first occasion on which a datacasting service (other than a test transmission in accordance with a determination under paragraph 34(1)(fa) of the Broadcasting Services Act 1992 ) was:

(i)
provided by another person under, and in accordance with the conditions of, a BSA datacasting licence; and
(ii)
transmitted under a datacasting transmitter licence;
in the licence area for the related licence.

(7)
In this section, unless the contrary intention appears:

licence area has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .

16 After subsection 102A(2)

Insert:

(2A)
If:

(a)
a transmitter licence (the first transmitter licence ) was issued under this section; and

(b)
the first transmitter licence authorises the operation of one or more specified radiocommunications transmitters for transmitting a particular commercial television broadcasting service (the first service ) in accordance with a commercial television broadcasting licence held by a person (the first BSA licence ); and

(c)
another commercial television broadcasting licence (the additional BSA licence ) is allocated to the person under section 38A or 38B of the Broadcasting Services Act 1992 ; and

(d)
the first BSA licence and the additional BSA licence relate to the same licence area (within the meaning of whichever of those sections is applicable); and

(e)
the additional BSA licence authorises the provision of another commercial television broadcasting service (the additional service ); and

(f)
the first service and the additional service are the subject of an election under subclause 6(5A) of Schedule 4 to the Broadcasting Services Act 1992 ;

the first transmitter licence is taken to authorise the operation of the transmitter or transmitters concerned for transmitting the additional service in accordance with the additional BSA licence.

17 Subsections 102A(4), (5) and (6)

Repeal the subsections, substitute:

(4)
Subsection (3) has effect subject to subsections (5) and (6).

(5)
The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service in digital mode using the channel or channels concerned has no effect unless the licensee holds a BSA datacasting licence authorising the provision of that service.

(6)
The authorisation of the operation of the transmitter or transmitters concerned for transmitting a datacasting service in digital mode using the channel or channels concerned (other than a test transmission) does not take effect until whichever of the following first happens:

(a)
the end of 12 months after the holder of the related licence was required, under a scheme in force under clause 6 of Schedule 4 to the Broadcasting Services Act 1992 , to commence transmitting the broadcasting service concerned in SDTV digital mode in the licence area for the related licence;

(b)
the first occasion on which a datacasting service (other than a test transmission in accordance with a determination under paragraph 34(1)(fa) of the Broadcasting Services Act 1992 ) was:

(i)
provided by another person under, and in accordance with the conditions of, a BSA datacasting licence; and
(ii)
transmitted under a datacasting transmitter licence;
in the licence area for the related licence.

(7)
In this section, unless the contrary intention appears:

licence area has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992 .

18 After section 102A

Insert:

102B Datacasting transmitter licences

(1)
The ACA must not issue a datacasting transmitter licence to a person unless the person is a qualified company.

(2)
If:

(a)
the applicant for a datacasting transmitter licence is a qualified company; and

(b)
the licence is not to be issued in accordance with a price-based allocation system determined under section 106;

the ACA must, within 14 days of receiving the application, refer the application to the ABA.

(3)
If:

(a)
an application for a datacasting transmitter licence is referred to the ABA under subsection (2); and

(b)
the ABA is satisfied that the issue of the licence would result in a breach of the BSA control rules;

the ABA may, by written notice given to the ACA within 30 days after the application was referred to the ABA, direct the ACA not to issue the licence to the applicant, and the ACA must comply with the direction.

(4)
If:

(a)
an application for a datacasting transmitter licence is referred to the ABA under subsection (2); and

(b)
the ABA is satisfied that the issue of the licence would not result in a breach of the BSA control rules;

the ABA must, by written notice given to the ACA, inform the ACA accordingly.

(5)
If an application for a datacasting transmitter licence is referred to the ABA under subsection (2), the ACA must not issue, or refuse to issue, the licence until whichever of the following first happens:

(a)
the ACA receives a notice from the ABA in relation to the application under subsection (3) or (4);

(b)
the end of 30 days after the application was referred to the ABA.

(6)
If the ACA refuses to issue a datacasting transmitter licence because of a direction under subsection (3), the notice of refusal must be accompanied by a copy of the direction.

(7)
For the purposes of this section, the issue of a datacasting transmitter licence results in a breach of the BSA control rules if, and only if, the issue of the licence would result in a breach of:

(a)
section 54A or 56A of the Broadcasting Services Act 1992 ; or

(b)
clause 41 of Schedule 6 to the Broadcasting Services Act 1992 .

19 Subsection 103(2)

After "102A", insert "or a datacasting transmitter licence".

20 At the end of section 103

Add:

(5)
Subject to Divisions 6 and 6A, a datacasting transmitter licence remains in force for 10 years.

21 After subsection 106(6)

Insert:

(6A)
A system so determined may provide that, before a datacasting transmitter licence is issued in accordance with the system, the ABA is to be given an opportunity to direct the ACA not to issue the licence if the ABA is satisfied that the issue of the licence would result in a breach of:

(a)
section 54A or 56A of the Broadcasting Services Act 1992 ; or

(b)
clause 41 of Schedule 6 to the Broadcasting Services Act 1992 .

(6B)
The ACA must comply with a direction given as mentioned in subsection (6A).

(6C)
If the ACA refuses to issue a datacasting transmitter licence because of a direction given as mentioned in subsection (6A), the notice of refusal must be accompanied by a copy of the direction.

22 Subsection 106(7)

Omit "and (6)", substitute ", (6) and (6A)".

23 At the end of subsection 107(3)

Add "or to datacasting transmitter licences".

24 At the end of subsection 108(5)

Add "or to datacasting transmitter licences".

25 After section 109

Insert:

109A Conditions of datacasting transmitter licences

(1)
A datacasting transmitter licence is subject to the following conditions:

(a)
a condition that the licensee must comply with this Act;

(b)
a condition that the licensee meet all obligations (if any) of the licensee to pay:

(i)
charges fixed by determinations under section 53 of the Australian Communications Authority Act 1997 ; and
(ii)
amounts of apparatus licence tax;
(c)
a condition that the licensee inform each person authorised by the licensee to operate a radiocommunications transmitter under the licence of the person's obligations to comply with this Act and the conditions of the licence;

(d)
a condition that the licensee, and any person so authorised, must not operate, or permit operation of, the transmitter except on a frequency or frequencies, or on a frequency channel, and at a constancy, specified in the licence;

(e)
a condition that the licensee, and any person so authorised, must not operate, or permit operation of, such a transmitter except within:

(i)
a part of the spectrum covered by a determination under subsection 34(3) of the Broadcasting Services Act 1992 ; or
(ii)
a part of the spectrum covered by a determination under subsection 34(1) of the Broadcasting Services Act 1992 because of paragraph 34(1)(fa) of that Act;
(f)
a condition that the licensee, and any person so authorised, must comply with guidelines developed by the ABA under section 33 of the Broadcasting Services Act 1992 ;

(fa)
a condition that the licensee, and any person so authorised, must comply with any regulations made for the purposes of clause 36B of Schedule 4 to the Broadcasting Services Act 1992 ;

(g)
a condition that the licensee, or a person so authorised, will commence to transmit a datacasting service within 1 year after the allocation of the licence or within such longer period as is notified in writing by the ABA;

(ga)
a condition that the licensee, or any person so authorised, will transmit a datacasting service during the whole or a part of each day in the period:

(i)
beginning on the commencement referred to in paragraph (g); and
(ii)
ending immediately before 1 January 2007;
(for this purpose, disregard a particular day if, in that period, there are fewer than:

(iii)
180 days; or
(iv)
if the ABA, by writing, notifies a greater number of days—that greater number of days;
on which there has been no transmission of a datacasting service under the licence);

(h)
a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter before 1 January 2007 for transmitting a datacasting service unless there is in force a BSA datacasting licence authorising the provision of that service;

(i)
a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter on or after 1 January 2007 for transmitting a datacasting service unless:

(i)
there is in force a BSA datacasting licence, or another licence allocated by the ABA under the Broadcasting Services Act 1992 , authorising the provision of that service; or
(ii)
that service is provided in accordance with a class licence under the Broadcasting Services Act 1992 ;
(j)
a condition that the licensee, and any person so authorised, will at all times have a constitution;

(k)
such other conditions as are specified in the licence.

(1A)
The ABA must not notify a longer period for the purposes of paragraph (1)(g) unless the ABA is satisfied that there are exceptional circumstances that warrant the longer period.

(1B)
The ABA must not notify a greater number of days for the purposes of paragraph (1)(ga) unless the ABA is satisfied that there are exceptional circumstances that warrant the greater number of days.

Constitution of licensee to contain certain provisions

(2)
A datacasting transmitter licence is subject to the condition that the licensee's constitution will at all times contain provisions under which:

(a)
a person is not eligible to continue to be the holder of shares in the licensee if, because of holding those shares and of any other relevant circumstances, that or some other person would contravene Part 5 of the Broadcasting Services Act 1992 ; and

(b)
the licensee may secure the disposal of shares held by a person to the extent necessary to prevent a contravention of Part 5 of the Broadcasting Services Act 1992 continuing; and

(c)
a person who becomes the holder of shares in the licensee is required to provide to the licensee a statutory declaration:

(i)
stating whether the shares are held by the person beneficially and, if not, who has beneficial interests in the shares; and
(ii)
stating whether the person, or any person who has a beneficial interest in the shares, is in a position to exercise control of a commercial television broadcasting licence, and giving particulars of any such position; and
(d)
a person holding shares in the licensee may be required by the licensee, from time to time, to provide to the licensee statutory declarations concerning matters relevant to the person's eligibility to continue to be the holder of those shares having regard to the provisions of Part 5 of the Broadcasting Services Act 1992 ; and

(e)
the licensee may secure the disposal of shares held by a person who refuses or fails to provide a statutory declaration under the provisions referred to in paragraph (c) or (d).

Constitution of authorised company to contain certain provisions

(3)
A datacasting transmitter licence is subject to the condition that the constitution of a company authorised by the licensee to operate a radiocommunications transmitter under the licence will at all times contain provisions under which:

(a)
a person is not eligible to continue to be the holder of shares in the company if, because of holding those shares and of any other relevant circumstances, that or some other person would contravene Part 5 of the Broadcasting Services Act 1992 ; and

(b)
the company may secure the disposal of shares held by a person to the extent necessary to prevent a contravention of Part 5 of the Broadcasting Services Act 1992 continuing; and

(c)
a person who becomes the holder of shares in the company is required to provide to the company a statutory declaration:

(i)
stating whether the shares are held by the person beneficially and, if not, who has beneficial interests in the shares; and
(ii)
stating whether the person, or any person who has a beneficial interest in the shares, is in a position to exercise control of a commercial television broadcasting licence, and giving particulars of any such position; and
(d)
a person holding shares in the company may be required by the company, from time to time, to provide to the company statutory declarations concerning matters relevant to the person's eligibility to continue to be the holder of those shares having regard to the provisions of Part 5 of the Broadcasting Services Act 1992 ; and

(e)
the company may secure the disposal of shares held by a person who refuses or fails to provide a statutory declaration under the provisions referred to in paragraph (c) or (d).

Application of control rules

(4)
Schedule 1 to the Broadcasting Services Act 1992 applies for the purposes of subparagraphs (2)(c)(ii) and (3)(c)(ii) of this section in a corresponding way to the way in which it applies for the purposes of Part 5 of that Act.

26 Section 110

Omit "or 109(1)(f)", substitute ", 109(1)(f) or 109A(1)(k)".

27 Paragraph 111(1)(c)

Omit "or 109(1)(f)", substitute ", 109(1)(f) or 109A(1)(k)".

28 Paragraph 111(1)(d)

After "102A", insert "or a datacasting transmitter licence".

29 Subsection 114(1)

Omit "and (3)", substitute ", (3), (3A), (3B), (3D) and (3F)".

30 After subsection 114(3)

Insert:

(3A)
The licensee must not authorise a person if:

(a)
the licence is a datacasting transmitter licence; and

(b)
the person is not a qualified company.

(3B)
The licensee must not authorise a person if:

(a)
the licence is a datacasting transmitter licence; and

(b)
the licensee did not, at least 30 days before the authorisation took place, give to the ABA a written notice stating the licensee's intention to authorise the person.

(3C)
If:

(a)
the ABA receives a notice of intention under subsection (3B); and

(b)
the ABA is satisfied that the authorisation would result in a breach of the BSA control rules;

the ABA may, by written notice given to the licensee within 30 days after the notice of intention was sent to the ABA, direct the licensee not to authorise the person.

(3D)
The licensee must not authorise a person in breach of a direction under subsection (3C).

(3E)
If:

(a)
the ABA receives a notice of intention under subsection (3B); and

(b)
the ABA is satisfied that the authorisation would not result in a breach of the BSA control rules;

the ABA must, by written notice given to the licensee, inform the licensee accordingly.

(3F)
If the licensee gives a notice of intention to the ABA under subsection (3B), the licensee must not authorise the person concerned until whichever of the following first happens:

(a)
the licensee receives a notice from the ABA in relation to the authorisation under subsection (3C) or (3E);

(b)
the end of 30 days after the notice of intention was sent to the ABA.

31 At the end of section 114

Add:

(5)
For the purposes of this section, an authorisation by the licensee of a datacasting transmitter licence results in a breach of the BSA control rules if, and only if, the authorisation would result in a breach of:

(a)
section 54A or 56A of the Broadcasting Services Act 1992 ; or

(b)
clause 41 of Schedule 6 to the Broadcasting Services Act 1992 .

32 Paragraph 118(1)(c)

After "126(1)", insert "or 128C(2)".

33 Paragraph 118(1)(d)

Before "cancelling", insert "or 128D(2)".

34 Division 6 of Part 3.3 (heading)

Repeal the heading, substitute:

Division 6—Suspending and cancelling apparatus licences: general

35 Paragraph 125(1)(a)

After "condition of the licence", insert "(other than a condition set out in paragraph 109A(1)(g), (ga), (h), (i) or (j) or subsection 109A(2) or (3))".

36 After Division 6 of Part 3.3

Insert:

Division 6A—Suspending and cancelling datacasting transmitter licences: ABA direction 128C Suspending datacasting transmitter licences

(1)
If the ABA is satisfied that:

(a)
the licensee of a datacasting transmitter licence; or

(b)
a person authorised by the licensee to operate a radiocommunications transmitter under the licence;

has contravened a condition of the licence set out in paragraph 109A(1)(g), (ga), (h), (i) or (j) or subsection 109A(2) or (3), the ABA may, by written notice given to the ACA, direct the ACA to suspend the licence for the period specified in the direction.

(2)
If the ACA is given a direction under subsection (1), the ACA must:

(a)
by written notice given to the licensee, suspend the licence; and

(b)
specify in the notice of suspension, as the day on which the suspension ceases, the first day after the end of the period specified in the direction.

Note: A direction is reviewable under Part 5.6.

(3)
A notice under subsection (2) must be accompanied by a copy of the direction under subsection (1).

(4)
The ABA may, at any time, by written notice given to the ACA, direct the ACA to revoke the suspension of the licence concerned.

(5)
The ACA must comply with a direction under subsection (4).

(6)
Section 127 applies to a suspension under this section in a corresponding way to the way in which it applies to a suspension under section 126.

128D Cancelling datacasting transmitter licences
(1)
If the ABA is satisfied that:

(a)
the licensee of a datacasting transmitter licence; or

(b)
a person authorised by the licensee to operate a radiocommunications transmitter under the licence;

has contravened a condition of the licence set out in paragraph 109A(1)(g), (ga), (h), (i) or (j) or subsection 109A(2) or (3), the ABA may, by written notice given to the ACA, direct the ACA to cancel the licence.

(2)
If the ACA is given a direction under subsection (1), the ACA must, by written notice given to the licensee, cancel the licence.

Note: A direction is reviewable under Part 5.6.

(3)
A notice under subsection (2) must be accompanied by a copy of the direction under subsection (1).

128E Stay of proceedings relating to suspension or cancellation of datacasting transmitter licence
(1)
For the purposes of this section, an eligible decision is:

(a)
a decision under subsection 128C(1) to give a direction requiring the ACA to suspend a datacasting transmitter licence on the grounds that there has been a contravention of the condition of the licence set out in paragraph 109A(1)(h); or

(b)
a decision under subsection 128C(2) to suspend a datacasting transmitter licence in compliance with a direction covered by paragraph (a) of this subsection; or

(c)
a decision under subsection 128D(1) to give a direction requiring the ACA to cancel a datacasting transmitter licence on the grounds that there has been a contravention of the condition of the licence set out in paragraph 109A(1)(h); or

(d)
a decision under subsection 128D(2) to cancel a datacasting transmitter licence in compliance with a direction covered by paragraph (c) of this subsection.

(2)
An order must not be made under paragraph 15(1)(a) or 15A(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 in relation to an eligible decision if:

(a)
the order has the effect of suspending the operation of the eligible decision for more than 3 months; or

(b)
the order and any previous order or orders made under the paragraph concerned have the combined effect of suspending the operation of the eligible decision for more than 3 months.

(3)
An order must not be made under paragraph 15(1)(b) or 15A(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 in relation to an eligible decision if:

(a)
the order has the effect of staying particular proceedings under the eligible decision for more than 3 months; or

(b)
the order and any previous order or orders made under the paragraph concerned have the combined effect of staying particular proceedings under the eligible decision for more than 3 months.

(4)
If:

(a)
a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to an eligible decision; and

(b)
an order could be made staying, or otherwise affecting the operation or implementation of, the eligible decision pending the finalisation of the application;

such an order must not be made if:

(c)
the order has the effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months; or

(d)
the order and any previous order or orders covered by paragraph (b) have the combined effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months.

(5)
If:

(a)
a person applies to the Administrative Appeals Tribunal for review of an eligible decision; and

(b)
an order could be made under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 staying, or otherwise affecting the operation or implementation of, the eligible decision;

such an order must not be made if:

(c)
the order has the effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months; or

(d)
the order and any previous order or orders covered by paragraph (b) have the combined effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months.

37 After subsection 130(2A)

Insert:

(2B)
The ACA must not renew the licence if:

(a)
the licence is a datacasting transmitter licence; and

(b)
the licence has already been renewed on a previous occasion.

38 At the end of section 131

Add:

(2)
Subsection 103(5) applies to renewing a datacasting transmitter licence as if a reference in that subsection to 10 years were a reference to 5 years.

39 Subsection 131AB(1)

Omit "section 131AC", substitute "sections 131AC and 131ACA".

40 Paragraph 131AB(3)(a)

Omit "Division 6", substitute "Divisions 6 and 6A".

41 After section 131AC

Insert:

131ACA Datacasting transmitter licences

(1)
The ACA must not transfer a datacasting transmitter licence to a person unless the person is a qualified company.

(2)
If the proposed transferee of a datacasting transmitter licence is a qualified company, the ACA must, within 14 days after receiving the relevant application, refer the relevant application to the ABA.

(3)
If:

(a)
an application for the transfer of a datacasting transmitter licence is referred to the ABA under subsection (2); and

(b)
the ABA is satisfied that the transfer of the licence would result in a breach of the BSA control rules;

the ABA may, by written notice given to the ACA within 30 days after the application was referred to the ABA, direct the ACA not to transfer the licence to the proposed transferee, and the ACA must comply with the direction.

(4)
If:

(a)
an application for the transfer of a datacasting transmitter licence is referred to the ABA under subsection (2); and

(b)
the ABA is satisfied that the transfer of the licence would not result in a breach of the BSA control rules;

the ABA must, by written notice given to the ACA, inform the ACA accordingly.

(5)
If an application for the transfer of a datacasting transmitter licence is referred to the ABA under subsection (2), the ACA must not transfer, or refuse to transfer, the licence until whichever of the following first happens:

(a)
the ACA receives a notice from the ABA in relation to the application under subsection (3) or (4);

(b)
the end of 30 days after the application was referred to the ABA.

(6)
If the ACA refuses to transfer a datacasting transmitter licence because of a direction under subsection (3), the notice of refusal must be accompanied by a copy of the direction.

(7)
For the purposes of this section, the transfer of a datacasting transmitter licence results in a breach of the BSA control rules if, and only if, the transfer of the licence would result in a breach of:

(a)
section 54A or 56A of the Broadcasting Services Act 1992 ; or

(b)
clause 41 of Schedule 6 to the Broadcasting Services Act 1992 .

42 Division 9 of Part 3.3

Repeal the Division.

43 Paragraph 148(b)

After "126", insert "or 128C".

44 Paragraph 148(c)

Before ", or any", insert "or 128D".

45 Paragraph 238(3)(c)

Omit "or 109(1)(f)", substitute ", 109(1)(f) or 109A(1)(k)".

46 Before section 285

Insert:

Division 1—Review of ACA decisions

47 After paragraph 285(ea)

Insert:

(eb)
refusal to issue a datacasting transmitter licence under section 102B otherwise than because of a direction under subsection 102B(3);

48 Paragraph 285(f)

Omit "or 109(1)(f)", substitute ", 109(1)(f) or 109A(1)(k)".

49 At the end of paragraph 285(ma)

Add "otherwise than because of a direction under subsection 131ACA(3)".

50 After section 292

Insert:

Division 2—Review of ABA decisions 292A Review by the AAT

An application may be made to the AAT for a review of any of the following decisions made by the ABA:

(a)
a decision to give a direction under subsection 102B(3);

(b)
a decision to give a direction as mentioned in subsection 106(6A);

(c)
a decision to give a direction under subsection 114(3C);

(d)
a decision to give a direction under subsection 128C(1);

(e)
a decision to give a direction under subsection 128D(1);

(f)
a decision to give a direction under subsection 131ACA(3).

292B Notification of decisions to include notification of reasons and appeal rights
If the ABA makes a decision that is reviewable under section 292A, the ABA is to include in the document by which the decision is notified:

(a)
a statement setting out the reasons for the decision; and

(b)
a statement to the effect that an application may be made to the AAT for a review of the decision.

Part 2—Transitional provisions

51 Transitional—regulations

(1) The regulations may make provision for matters of a transitional nature arising from the amendments made by Part 1 of this Schedule.
(2) The Governor-General may make regulations for the purposes of subitem (1).



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