EXPLANATORY STATEMENT
Exemption for Restrictions on Transfer of Assets (No. 1 of 2011)
Issued by the Authority of the Minister for Broadband, Communications
and the Digital Economy
National Transmission Network Sale Act 1998
The National Transmission Network Sale Act 1998 (‘the Act’) regulates the ownership and management of particular assets that were formerly part of the national transmission network. The network was privatised in 1998. The network is used to provide a range of analog transmission services and incidental services (nominated services) to the Australian Broadcasting Corporation (ABC), the Special Broadcasting Service Corporation, and particular community broadcasting services (collectively, the nominated customers).
Section 18 of the Act regulates the transfer of particular national transmission assets.
Subsection 18(1) of the Act provides that the Minister for Broadband, Communications and the Digital Economy (‘the Minister’) must give written approval to transfer an original asset or replacement asset before the time of transfer, otherwise the transfer will be of no effect.
An original asset is an asset transferred from the Commonwealth under section 9 of the Act through a Gazette notice made by the Finance Minister (Commonwealth Gazette No. S179 (29 April 1999)). Under section 3 of the Act, a replacement asset means an asset that is a replacement for an original asset; or an asset that replaces a replacement asset due to the previous application of the definition.
Subsection 18(2) of the Act further provides that the Minister must approve the transfer, unless he refuses approval in accordance with subsection 18(3) of the Act.
Subsection 18(3) provides that the Minister may refuse to approve a transfer on the following grounds:
(a) the Minister has reason to believe that the transfer might jeopardise continued access by a nominated customer to a nominated service for a nominated purpose;
(b) any other prescribed ground that relates to matters covered by paragraph 51(v) of the Constitution.
Subsection 18(5) of the Act provides that section 18 of the Act does not apply to an asset that the Minister exempts from the operation of this section.
The purpose of this instrument is to exempt a specified asset from the operation of section 18 of the Act, so that after a specified date the owner of the asset need not seek written approval from the Minister before transferring the asset.
Originally Blake St was a single lot (Lot 5523) that was later subdivided to create Lots 6907 and 6908. Lot 6908 does not contain any ABC analog television transmission infrastructure, but it does completely surround Lot 6907 which contains infrastructure for the transmission of a nominated service (ABC analog television). Lot 6908 provides access to Lot 6907, via an easement. Therefore, Lot 6908 is a regulated asset for the provision of a nominated service, and as such, its transfer is currently subject to Ministerial consent under Section 18(1) of the Act.
Exemption of Lot 6908 from the operation of section 18 of the Act will be granted from 1 January 2014 onward on the grounds that after analog switchover in Darwin (during the second half of 2013) the coverage area of the Blake Street analog television service is adequately served in digital mode from other transmission sites in Darwin. Lot 6908 will therefore cease to be a regulated asset for the provision of a nominated service, and its transfer will not require Ministerial approval.
Once made the instrument is subject to Parliamentary scrutiny and disallowance.
Notes on Clauses
Clause 1 provides that the name of the Instrument is the Exemption from Restrictions on Transfer of Assets (No.1 of 2011).
Clause 2 provides that the Instrument will take effect on 1 January 2014. This date is selected because analog transmission of television is intended to stop in Darwin in late 2013. The ABC’s analog transmission facility will be switched off, with the result that the related lot of land will no longer be required for analog transmission purposes.
Clause 3 is a definitions clause.
Clause 4 is the main operative clause.
Clause 4 provides that the asset comprising a lot of land located at 16 Blake Street, The Gardens, Darwin, Northern Territory, will be exempt from the operation of section 18 of the Act. (The land is also identified by its Certificate of Title details.) As a result the lot owner will no longer need to obtain the Minister’s written approval before transferring the asset.
Consultation
Broadcast Australia wrote to the Minister requesting an exemption from the operation of Section 18 of the Act. Section 18 of the Act requires the Minister to approve a transfer of original assets or replacement assets under this Act.
In considering this request the Minister took into account recent representation made to Broadcast Australia by the Australian Broadcasting Corporation (ABC) regarding the proposed disposal of Lot 6908 and its impact on the transmission of analog television services by the ABC.
The Minister took the ABC’s views into account.