EXPLANATORY STATEMENT
Statutory Rule 1989 No. 79
Issued by the Authority of the Minister for Transport and Communications
Subject - Broadcasting Act 1942
Broadcasting (National Metropolitan Radio Plan Regulations)
Subsection 134(1) of the Broadcasting Act 1942 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Division 1A of Part IIIB of the Act makes provision for the conversion of certain AM radio broadcasting licences to FM through a system of tendering. Subsection 89DAE(8) of the Act requires licensees submitting a tender to lodge a deposit (which will normally be refunded) with the Commonwealth. Section 89DAH of the Act requires the Secretary of the Department of Transport and Communications to establish a Tender Board which is to prepare a list of tenderers whose bids are acceptable, showing the names of those tenderers and the amounts of their bids in descending order according to the amounts of their bids.
Subsection 89DAH(5) provides that where the bids of two or more licensees are the same, the order in which the licensees’ names appear on the list shall be determined by lot in accordance with the Regulations. Offers of conversion are then made in the order of the list until all available frequencies are taken up.
Section 89DAO stipulates how deposits are to be dealt with. Where a licensee’s name appears on the list, and that licensee’s license is not converted to FM but the licences of other licensees whose names appear on the same list are converted, the deposit paid by a licensee whose licence is not converted is to be repaid and subsection 89DAO(3) requires that interest is to be paid on that repaid deposit. Subsection 89DAO(4) provides that interest is to be paid at a rate determined in accordance with the Regulations. The Minister for Transport and Communications has decided that the interest rate should be set at 14.026%,
which is the rate currently specified in section 10 of the Taxation (Interest on Overpayments) Act 1983 as the rate of interest payable on overpayments of tax.
In order to put these provisions into effect, Regulations have been made in the attached form.
Details of the Regulations are:
Clause 1: Citation
Provides that the Regulations may be cited as the Broadcasting (National Metropolitan Radio Plan) Regulations.
Clause 2: Interpretation
Provides that in the Regulations “the Act” means the Broadcasting Act 1942.
Clause 3: Rate of Interest on Repaid Deposits
Provides that for the purposes of subsection 89DAO(4) the rate of interest payable on repaid deposits is to be 14.026%.
Clause 4: Determining Order of Licensees Whose Bids are the Same
Provides that where the bids of 2 or more tendering licensees are the same, the order in which these licensees’ names appear on the list prepared pursuant to section 89DAH of the Act shall be determined by:
• allotting a number to each of the bids;
• placing in a container objects, each bearing one of those numbers;
• drawing the objects from the container one at a time in such a way that the person drawing them cannot then distinguish one object from another.
The order of the bids on the list is then to be the same as the order in which the numbers allotted to the bids were drawn.
The Regulation also provides that licensees, their representatives, or representatives of associations of licensees are entitled to be present at such a drawing.
Overview
The Broadcasting (National Metropolitan Radio Plan) Regulations 1989 were enacted to provide regulatory support for the conversion of certain AM radio broadcasting licences to FM as outlined in the Broadcasting Act 1942. The Act introduced a tendering system for this conversion, necessitating regulations to govern the administration of deposits, the ranking of bids, and the repayment of deposits with interest to unsuccessful tenderers. The Minister for Transport and Communications set the interest rate for repaid deposits at 14.026%, aligning it with the rate specified in the Taxation (Interest on Overpayments) Act 1983. The regulations ensure that the process for determining the order of licensees with identical bids is conducted fairly and transparently, allowing relevant parties to observe the drawing of lots. This legislative framework aims to facilitate the efficient and orderly conversion of radio licences while maintaining fairness and transparency in the tendering process.
Scope and Application
The Broadcasting (National Metropolitan Radio Plan) Regulations 1989 pertain to the implementation of the Broadcasting Act 1942, specifically addressing the conversion of AM radio broadcasting licenses to FM through a tendering system. The Act applies to licensees who submit tenders for such conversions, requiring them to lodge a deposit, which is normally refunded. The regulations are made under the authority of the Minister for Transport and Communications and establish procedures for handling these deposits, including the rate of interest to be paid on any refunds. The Act applies to all tendering licensees within the Commonwealth, ensuring a standardised approach to the conversion process across metropolitan areas. The regulations do not specify exclusions but operate under the overarching framework of the Broadcasting Act 1942, which governs broadcasting activities within Australia. Any further detailed specifications or modifications to the application of these regulations can be made through subordinate instruments, ensuring flexibility in administration and compliance with the Act's broader objectives.
Key Provisions
The Broadcasting (National Metropolitan Radio Plan) Regulations made under the Broadcasting Act 1942 (the Act) primarily deal with the conversion of certain AM radio broadcasting licences to FM. Key sections include subsections 89DAE(8), 89DAH, and 89DAO. Section 89DAE(8) requires licensees submitting a tender for conversion to lodge a deposit with the Commonwealth. The Secretary of the Department of Transport and Communications is mandated by section 89DAH to establish a Tender Board to prepare a list of acceptable bidders in descending order of bid amounts. If bids are equal, the order is determined by lot as outlined in section 89DAH(5). Offers for conversion are made in the order of this list until all available frequencies are allocated. Section 89DAO outlines the handling of deposits, stipulating that if a licensee’s name appears on the list but their licence is not converted, their deposit must be repaid with interest at a rate set by regulation, which in this case is 14.026% as per section 10 of the Taxation (Interest on Overpayments) Act 1983.
The Regulations impose several obligations on the parties involved. Licensees are required to submit tenders and lodge deposits as per section 89DAE(8). The Secretary of the Department of Transport and Communications must establish a Tender Board to manage the tender process, including preparing a list of acceptable bidders and determining the order of equal bids through a drawing of lots. Licensees, their representatives, or representatives of associations of licensees are entitled to be present during the drawing process as specified in Clause 4. These obligations ensure a transparent and orderly process for the conversion of AM radio broadcasting licences to FM.
Failure to comply with the provisions of the Act and the Regulations can result in various consequences. While the explanatory statement does not detail specific offences or penalties, it is reasonable to infer that breaches of the Act or Regulations could lead to legal actions, including potential fines or other administrative penalties. For instance, non-compliance with the deposit requirements or failure to adhere to the tender process outlined in the Act could be grounds for revocation of the tender or other enforcement actions by the Department of Transport and Communications. The specific penalties would be determined based on the nature and severity of the breach, in accordance with applicable laws and regulations.