EXPLANATORY STATEMENT
STATUTORY RULE 1987 NO. 57
ISSUED BY THE AUTHORITY OF THE MINISTER FOR COMMUNICATIONS
Section 105 of the Broadcasting and Television Amendment Act 1985 (‘the Act’) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for giving effect to the Act.
The Broadcasting Act 1942 (‘the Principal Act’) provides in part for licensing of commercial and public broadcasting services. The Principal Act also establishes the Australian Broadcasting Tribunal (ABT) and vests in it licensing and supervisory powers in relation to those services.
The Act made amendments to the Principal Act, effective as of 1 January 1986, to introduce in Division 3 of Part II new provisions for the conduct of inquiries by the ABT into the exercise of specified ‘substantive’ powers. The Australian Broadcasting Tribunal (Inquiries) Regulations established a flexible set of inquiry procedures to complement the new provisions in Division 3 of Part II.
Section 98(1) of the Act provides for the continued operation of the Broadcasting and Television Act 1942 (the previous Act), being the Principal Act as it was prior to the amendments which came into force on 1 January 1986, in relation to specified classes of inquiry.
Section 98(2) (inserted by the Broadcasting and Television Legislation Amendment Act 1985, No. 191 of 1985) provides that regulations may be made for and in relation to the application of the new provisions of Division 3 of Part II of the Principal Act to inquiries which would otherwise have to be conducted under the previous Act in accordance with section 98(1).
The Australian Broadcasting Tribunal (Inquiries) (Transitional Provisions) Regulations provide for the application of the new provisions of Division 3 of Part II to a range of inquiries which would otherwise have to be dealt with under the previous Act. This in turn applies the Inquiries Regulations to those inquiries. The purpose of the regulations is to extend the benefits of the clear procedural framework established by the Act and the Inquiries Regulations to as wide a range of inquiries as is practicable.
The broad approach adopted in the regulations is that the new inquiry processes attach to any inquiry in which the Tribunal has not yet taken a substantive step.
The following are seen as substantive steps in an inquiry:
• issuing notices inviting submissions from the public or setting a date for hearing;
• receiving oral evidence or argument; and
• making a finding on a matter in the inquiry.
Where such a step has been taken under the old provisions at commencement of the regulations, the inquiry will proceed under those provisions.
The regulations have been prepared in consultation with the Attorney-General’s Department, the ABT and broadcasters.
Details of the regulations are set out in the Attachment.
ATTACHMENT
Details of the proposed regulations are as follows:
Regulation 1 provides for citation.
Regulation 2 deals with interpretation.
Sub regulation 2(1) provides that the Broadcasting and Television Amendment Act is referred to as ‘the Act’.
Sub-regulation 2(2) adopts definitions applying in Part III of the Act.
Sub-regulation 2(3) defines the inquiries to which the new inquiry provisions are to be applied. These inquiries are referred to as ‘relevant inquiries’.
A relevant inquiry is any inquiry referred to sub-section 98(2) of the Act (that is, any inquiry to which the provisions of the previous Act apply under sub-section 98(1)) other than specific exceptions set out in paragraphs 2(3)(a) to (d) of the regulations.
Paragraph 2(3)(a) relates to section 98(1)(a) of the Act, which provides that the previous Act applies to licences which existed at commencement of the amendments on 1 January 1986 and have not yet been converted to the new licensing scheme. Paragraph 2(3)(a) provides that inquiries relating to such licences are not relevant inquiries where one of a number of specified steps in the inquiry had been taken before commencement of the proposed regulations (see the general explanation of substantive steps above).
Paragraph 2(3)(b) relates to section 98(1)(b) of the Act which provides that the previous Act applies to inquiries arising from notices published under section 82 of the previous Act prior to 1 January 1986. Paragraph 2(3)(b) provides that such inquiries are not relevant inquiries for the proposed regulations reflecting the position that the publication of a section 82 notice is a substantive step which has already been taken.
Paragraph 2(3)(c) relates to section 98(1)(c) of the Act, which provides that the previous Act applies to inquiries into applications for supplementary licences lodged before 1 January 1986. Paragraph 2(3)(c) provides that such inquiries are not relevant inquiries where a notice under section 82A(9) (the first substantive step in a supplementary licence inquiry) is published before commencement of the proposed regulations.
Paragraph 2(3)(d) relates to section 98(1)(d) of the Act, which provides that the previous Act applies to licences granted under section 98(1)(b) or (c) of the Act. (These would be old system licences by virtue of that section). The form of paragraph 2(3)(d) mirrors paragraph 2(3)(a).
Regulation 3 provides that Division 3 of Part II of the Principal Act applies to relevant inquiries as if they were inquiries under section 17C(1). Inquiries under section 17C(1) are inquiries into the exercise of substantive powers, which are to be held in accordance with Division 3 of Part II and the Australian Broadcasting Tribunal (Inquiries) Regulations.
Sub-regulation 3(2) is necessary because the Australian Broadcasting Tribunal (Inquiries) Regulations make special provision for procedures in relation to rebroadcasting and retransmission licences (regulation 8(1)(a)). It is intended that, under the application of those regulations to old system licences, the same special considerations should apply to translator licences and old retransmission licences, the old-system equivalents of rebroadcasting and retransmission licences. Sub-regulation 3(2) achieves this result by expressly extending the meaning of references to rebroadcasting licence or retransmission licence.