Australian Broadcasting Tribunal (Inquiries) (Transitional Provisions) Regulations

Administered by Department of Communications and the Arts

Legislation au F1997B01663 Regulations Not in force Legislative Instrument

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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.

Overview

The Broadcasting and Television Amendment Act 1985, issued by the authority of the Minister for Communications, is a statutory rule aimed at enhancing the regulatory framework for broadcasting and television services in Australia. This Act was enacted to address specific gaps and improve the existing provisions within the Broadcasting Act 1942. The Broadcasting Act 1942 primarily provided for the licensing of commercial and public broadcasting services and established the Australian Broadcasting Tribunal (ABT) to oversee these services. The 1985 amendment introduced new provisions in Division 3 of Part II of the Principal Act for conducting inquiries by the ABT into the exercise of certain 'substantive' powers, and the Australian Broadcasting Tribunal (Inquiries) Regulations were established to complement these new provisions. The policy objective of these amendments was to ensure that the inquiry processes for broadcasting services were conducted under a clear and flexible procedural framework, thus facilitating better regulatory oversight and compliance.

Scope and Application

The Broadcasting and Television Amendment Act 1985 applies to entities and individuals involved in commercial and public broadcasting services in Australia. Specifically, it governs the conduct of inquiries into the exercise of specified substantive powers by the Australian Broadcasting Tribunal (ABT), which is established under the Broadcasting Act 1942. The Act introduces new provisions for the conduct of such inquiries and is complemented by the Australian Broadcasting Tribunal (Inquiries) Regulations. These regulations establish a flexible set of inquiry procedures. The geographic reach of the Act is national, affecting all broadcasters operating within Australia. However, certain inquiries are excluded from the new provisions if specific substantive steps have already been taken under the previous Act before the commencement of the regulations. The Act extends its application through subordinate instruments such as the Australian Broadcasting Tribunal (Inquiries) Regulations and the Australian Broadcasting Tribunal (Inquiries) (Transitional Provisions) Regulations, which provide detailed procedural frameworks and transitional provisions to ensure a smooth implementation of the new inquiry processes.

Key Provisions

The Australian Broadcasting Tribunal (Inquiries) Regulations establish a flexible set of inquiry procedures to complement the new provisions for the conduct of inquiries by the Australian Broadcasting Tribunal (ABT) in Division 3 of Part II of the Broadcasting Act 1942, as amended by the Broadcasting and Television Amendment Act 1985. Regulation 3 (sub-regulation 3(2)) applies Division 3 of Part II of the Principal Act to 'relevant inquiries' as if they were inquiries under section 17C(1). The definition of 'relevant inquiries' is specified in sub-regulation 2(3) and includes inquiries into the exercise of specified 'substantive' powers, except for those where certain substantive steps have already been taken under the old provisions, such as issuing notices inviting submissions, receiving oral evidence, or making findings. These exceptions are detailed in sub-regulation 2(3)(a) to (d). The regulations impose certain obligations on the ABT and broadcasters. The ABT must ensure that the new inquiry processes are applied to relevant inquiries, as defined, unless specific exceptions apply. Broadcasters must comply with the new inquiry procedures when their cases are subject to such inquiries. Additionally, the ABT must apply the Australian Broadcasting Tribunal (Inquiries) Regulations to relevant inquiries, ensuring the procedures are followed correctly. The regulations also require the ABT to consult with the Attorney-General's Department, the ABT itself, and broadcasters in preparing the regulations, reflecting a collaborative approach to their development. For breaches of the regulations, there are potential civil and criminal consequences. The Act does not specify maximum penalties within the regulations themselves but indicates that breaches of the Act or regulations could result in fines or other penalties as prescribed by law. These penalties could be significant, depending on the severity of the breach and the discretion of the courts. It is important for parties to comply with the regulations to avoid such consequences.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.