Exemption from Restrictions on Transfer of Assets (No. 1 of 2011)

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2011L02079 Not in force Legislative Instrument

Legislation content

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.

 

Overview

The Exemption for Restrictions on Transfer of Assets (No. 1 of 2011) was introduced to address a specific issue concerning the transfer of assets that were once part of Australia's national transmission network. Enacted by the Minister for Broadband, Communications and the Digital Economy, the instrument seeks to amend the National Transmission Network Sale Act 1998, which was established to regulate the ownership and management of assets privatised in 1998 and used to provide analog transmission services to the Australian Broadcasting Corporation, Special Broadcasting Service Corporation, and certain community broadcasting services. The primary policy objective of this instrument is to exempt a specified asset from the restrictive provisions of section 18 of the Act, thereby allowing its transfer without requiring the Minister's written approval from a specified date. This exemption is granted considering the completion of the analog switchover in Darwin, ensuring adequate digital coverage for the services in question.

Scope and Application

The Exemption for Restrictions on Transfer of Assets (No. 1 of 2011) relates to the regulation of assets that were previously part of the national transmission network, specifically focusing on the transfer of assets that were privatised in 1998. This instrument applies to assets, such as land or infrastructure, that are necessary for the provision of analog transmission services and incidental services to nominated customers, including the Australian Broadcasting Corporation (ABC), the Special Broadcasting Service Corporation, and particular community broadcasting services. The Act's provisions apply nationally, overseen by the Commonwealth, with the Minister for Broadband, Communications and the Digital Economy having the authority to approve or refuse the transfer of original or replacement assets. This Act also allows for exemptions from its requirements through subordinate instruments, such as the instrument in question, which exempts a specified asset from the need for Ministerial approval for transfers after a certain date. The exemption instrument specifies that Lot 6908 at 16 Blake Street, The Gardens, Darwin, Northern Territory, will be exempt from the need for Ministerial approval for transfer from 1 January 2014, given the expected completion of analog switchover in Darwin by the second half of 2013.

Key Provisions

The main operative sections of the legislation (F2011L02079) are detailed in Clause 4. This clause provides that the specified asset, namely 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 National Transmission Network Sale Act 1998. This means that the owner of this asset will no longer be required to seek written approval from the Minister for Broadband, Communications and the Digital Economy before transferring the asset. This exemption takes effect from 1 January 2014, as specified in Clause 2 of the legislation. The Act imposes specific obligations on the parties and entities it governs. Under section 18(1) of the National Transmission Network Sale Act 1998, the Minister must give written approval for the transfer of original or replacement assets unless specified conditions are met. The Minister may refuse approval if the transfer might jeopardise continued access by nominated customers to nominated services for nominated purposes, or on any other prescribed ground related to constitutional matters. Section 18(5) of the Act allows the Minister to exempt certain assets from these requirements, which is the mechanism by which the current legislation operates. Failure to comply with the provisions of the Act can result in civil or criminal consequences. For instance, transferring an asset without the required Ministerial approval, when such approval is necessary, can render the transfer ineffective. The specific consequences for such breaches are not detailed in the explanatory statement, but generally, non-compliance with regulatory requirements can lead to legal action, fines, or other penalties as deemed appropriate by the relevant authorities. The exact penalties would depend on the nature and severity of the breach, and would be determined in accordance with the provisions of the National Transmission Network Sale Act 1998 and any other applicable laws.

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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.