(3) In deciding whether such a risk exists, the ACMA is to take into account:
(a) the business record of the company; and
(b) the company’s record in situations requiring trust and candour; and
(c) the business record of the chief executive and each director and secretary of the applicant; and
(d) the record in situations requiring trust and candour of each such person; and
(e) whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and
(f) whether a civil penalty order has been made against:
(i) the company; or
(ii) a person referred to in paragraph (c) or (d).
(4) This section does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
84 Allocation of community broadcasting licences
(1) The Minister may give directions to the ACMA to give priority to a particular community interest or interests, whether generally or in a particular licence area, in allocating community licences that are broadcasting services bands licences.
(2) In deciding whether to allocate a community broadcasting licence that is a broadcasting services bands licence to an applicant or to one of a group of applicants, the ACMA is to have regard to:
(a) the extent to which the proposed service or services would meet the existing and perceived future needs of the community within the licence area of the proposed licence; and
(b) the nature and diversity of the interests of that community; and
(ba) in the case of a community radio broadcasting licence—the extent to which the proposed service or services would provide material of local significance; and
(c) the nature and diversity of other broadcasting services (including national broadcasting services) available within that licence area; and
(d) the capacity of the applicant to provide the proposed service or services; and
(e) the undesirability of one person being in a position to exercise control of more than one community broadcasting licence that is a broadcasting services bands licence in the same licence area; and
(f) the undesirability of the Commonwealth, a State or a Territory or a political party being in a position to exercise control of a community broadcasting licence.
(3) For the purposes of paragraph (2)(ba), material is of local significance if:
(a) it is hosted in the licence area of the proposed licence; or
(b) it is produced in the licence area of the proposed licence; or
(c) it relates to the licence area of the proposed licence.
84A Designated community radio broadcasting licences to provide analog or digital services
Licences in force immediately before the commencement of this section
(1) If a designated community radio broadcasting licence was in force immediately before the commencement of this section, the licence is taken, for the purposes of this Act, to have been allocated as a licence to provide an analog community radio broadcasting service.
Licences allocated before the digital radio start‑up day for the licence area
(2) If the ACMA allocates a designated community radio broadcasting licence after the commencement of this section but before the digital radio start‑up day for the licence area, the licence must be allocated as a licence to provide an analog community radio broadcasting service.
Licences allocated on or after digital radio start‑up day for the licence area
(3) If the ACMA allocates a designated community radio broadcasting licence on or after the digital radio start‑up day for the licence area, the licence must be allocated as:
(a) a licence to provide an analog community radio broadcasting service; or
(b) a licence to provide digital community radio broadcasting services.
Licence conditions
(4) Subject to subsection (5), if a designated community radio broadcasting licence is or was allocated as a licence to provide an analog community radio broadcasting service, the licence is subject to the condition that the licensee may only provide an analog community radio broadcasting service under the licence.
(5) If:
(a) a designated community radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and
(b) the licence authorised the licensee to provide an analog community radio broadcasting service in the licence area;
subsection (4) ceases to apply in relation to the licence at the start of the digital radio start‑up day for the licence area.
(6) If a designated community radio broadcasting licence is allocated as a licence to provide digital community radio broadcasting services, the licence is subject to the condition that the licensee may only provide digital community radio broadcasting services under the licence.
85 ACMA not required to allocate community broadcasting licence to any applicant
The ACMA is not required to allocate a community broadcasting licence to any applicant.
85A Services authorised by designated community radio broadcasting licences
Licences in force immediately before the commencement of this section
(1) If:
(a) a designated community radio broadcasting licence was in force immediately before the commencement of this section; and
(b) the licence authorised the licensee to provide an analog community radio broadcasting service in the licence area;
then, during the period:
(c) beginning at the start of the day on which this section commences; and
(d) ending immediately before the digital radio start‑up day for the licence area;
the licence is taken to authorise the licensee to provide that service in the licence area.
Licences allocated on or after the commencement of this section
(2) If:
(a) a designated community radio broadcasting licence is allocated on or after the commencement of this section but before the digital radio start‑up day for the licence area; and
(b) the licence is allocated as a licence to provide an analog community radio broadcasting service in the licence area;
then, during the period:
(c) beginning at the start of the day on which the licence is allocated; and
(d) ending immediately before the digital radio start‑up day for the licence area;
the licence is taken to authorise the licensee to provide that service in the licence area.
Licences in force immediately before the digital radio start‑up day for the licence area
(3) If:
(a) a designated community radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and
(b) the licence authorised the licensee to provide an analog community radio broadcasting service in the licence area;
then, after the digital radio start‑up day for the licence area, the licence is taken to authorise the licensee to provide the following services in the licence area:
(c) the analog community radio broadcasting service;
(d) one or more digital community radio broadcasting services.
Licences allocated on or after digital radio start‑up day for the licence area
(4) If:
(a) a designated community radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and
(b) the licence is allocated as a licence to provide an analog community radio broadcasting service in the licence area;
the licence is taken to authorise the licensee to provide that service in the licence area.
(5) If:
(a) a designated community radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and
(b) the licence is allocated as a licence to provide digital community radio broadcasting services in the licence area;
the licence is taken to authorise the licensee to provide one or more digital community radio broadcasting services in the licence area.
86 Conditions of community broadcasting licences
(1) Each community broadcasting licence is subject to:
(a) the conditions set out in Part 5 of Schedule 2; and
(b) such other conditions as are imposed under section 87.
(2) In addition, CTV licences are subject to such other conditions as are imposed by or under section 87A.
87 ACMA may impose additional conditions on community broadcasting licences
(1) The ACMA may, by notice in writing given to a community broadcasting licensee, vary or revoke a condition of the licence or impose an additional condition on the licence.
(2) If the ACMA proposes to vary or revoke a condition or to impose a new condition, the ACMA must give to the licensee:
(a) written notice of its intention; and
(b) a reasonable opportunity to make representations to the ACMA in relation to the proposed action; and
(c) publish the proposed changes in the Gazette.
(3) This section does not allow the ACMA to vary or revoke a condition set out in Part 5 of Schedule 2.
(4) If the ACMA varies or revokes a condition or imposes a new condition, the ACMA must publish the variation, the fact of the revocation or the new condition, as the case may be, in the Gazette.
(5) Action taken under subsection (1) must not be inconsistent with:
(a) determinations and clarifications under section 19; or
(b) conditions set out in Part 5 of Schedule 2; or
(c) if the licence is a CTV licence—any conditions imposed on the licence by or under section 87A.
87A Additional conditions on CTV licences
Policy underlying additional conditions
(1) It is the intention of the Parliament that services provided under CTV licences be regulated in a manner that causes them not to operate in the same way as commercial television broadcasting services.
Conditions relating to sale of access to air‑time
(2) Each CTV licence is subject to the condition that the licensee must not sell access to more than 2 hours of air‑time in any day to a particular person who operates a business for profit or as part of a profit‑making enterprise, unless the person is a company that has a sole or dominant purpose of assisting a person in education or learning.
(3) Each CTV licence is subject to the condition that the licensee must not sell access to a combined total of more than 8 hours of air‑time in any day to people who operate businesses for profit or as part of profit‑making enterprises.
(4) Each CTV licence is subject to the condition that the licensee must not sell access to more than 8 hours of air‑time in any day to a particular person.
(5) For the purposes of the conditions imposed by subsections (2), (3) and (4), the sale of access to air‑time to any of the following is taken to be the sale of access to air‑time to a company:
(a) the sale of access to air‑time to any person in a position to exercise control of the company;
(b) the sale of access to air‑time to any related body corporate (within the meaning of the Corporations Act 2001) of the company.
(6) The ACMA may, by legislative instrument, impose other conditions on all CTV licences relating to sale of access to air‑time.
Conditions relating to other matters
(7) The ACMA may, by legislative instrument, impose other conditions on all CTV licences, including, but not limited to, conditions relating to:
(a) community access to air‑time; or
(b) the governance of CTV licensees (including conditions relating to provisions that the constitution of the licensee must at all times contain); or
(c) the provision of annual reports to the ACMA and the form in which they are to be provided.
Changes to conditions
(8) The ACMA may, by legislative instrument, vary or revoke any condition imposed by or under this section.
(9) The ACMA must, before imposing, varying or revoking a condition under this section, seek public comment on the proposed condition or the proposed variation or revocation.
(10) Action taken under this section must not be inconsistent with:
(a) determinations and clarifications under section 19; or
(b) conditions set out in Part 5 of Schedule 2.
Definitions
(12) In this section:
access, in relation to air‑time, means the right to select or provide programs to be broadcast during the air‑time.
air‑time means time available for broadcasting programs on a community broadcasting service.
sell, in relation to access to air‑time, means enter into any arrangement under which a person receives any consideration in cash or in kind in relation to provision of the access to air‑time.
87B Special licence condition relating to digital community radio broadcasting services
(1) This section applies to a designated community radio broadcasting licence if the licence authorises the licensee to provide one or more digital community radio broadcasting services.
(2) The licence is subject to the condition that the licensee must not provide a digital community radio broadcasting service under the licence unless:
(a) the service is transmitted using a multiplex transmitter; and
(b) the operation of the multiplex transmitter is authorised by a digital radio multiplex transmitter licence.
88 Matters to which conditions may relate
(1) Conditions of community broadcasting licences must be relevant to community broadcasting services.
(2) Without limiting the range of conditions that may be imposed, the ACMA may impose a condition on a community broadcasting licensee:
(a) requiring the licensee to comply with a code of practice that is applicable to the licensee; or
(b) designed to ensure that a breach of a condition by the licensee does not recur.
89 Duration of community broadcasting licences
(1) A community broadcasting licence:
(a) comes into force on a day determined by the ACMA; and
(b) subject to subsection 90(1E) and Part 10, remains in force for 5 years from that day.
(2) However, if:
(a) the community broadcasting licence is a related licence for the purposes of subsection 102(1) of the Radiocommunications Act 1992; and
(b) each transmitter licence issued under that subsection in relation to the community broadcasting licence is cancelled by force of paragraph 103(4A)(c) of that Act;
the community broadcasting licence is cancelled at the same time by force of this subsection.
90 Applications for renewal of community broadcasting licences
(1) The ACMA may renew a community broadcasting licence if the licensee makes an application for renewal of the licence, in accordance with a form approved in writing by the ACMA.
(1A) Subject to subsection (1C), an application for renewal must be made no earlier than one year before the licence is due to expire, but no later than the earlier of the following times:
(a) 26 weeks before the licence is due to expire;
(b) a time that is notified in writing to the licensee by the ACMA.
(1B) A time that is notified under paragraph (1A)(b) must be at least 4 weeks after the day on which it is notified to the licensee.
Late applications
(1C) The ACMA may consider a late application for the renewal of a community broadcasting licence if:
(a) the licensee makes the application before the earlier of the following:
(i) the time when the licence is due to expire;
(ii) the time (if any) notified to the licensee by the ACMA under subsection (1CA); and
(b) the application is accompanied by a written statement setting out the licensee’s reasons for the lateness of the application; and
(c) the ACMA considers that there are exceptional circumstances that warrant the consideration of the application.
(1CA) The ACMA may, by notice in writing given to a licensee, specify a time after which a late application lodged by the licensee will not be accepted.
(1D) In deciding whether there are exceptional circumstances that warrant the consideration of the application, the ACMA must have regard to:
(a) how late the application is; and
(b) the reasons given by the licensee for the lateness of the application; and
(c) the number of paid staff (if any) employed by the licensee; and
(d) such other matters (if any) as the ACMA considers relevant.
(1E) If:
(a) the ACMA decides, under subsection (1C), to consider a late application for the renewal of a community broadcasting licence; and
(b) the ACMA does not make a decision on the application before the time when the licence is due to expire;
the licence remains in force until the ACMA makes a decision on the application.
(1F) If:
(a) the ACMA decides, under subsection (1C), to consider a late application for the renewal of a community broadcasting licence; and
(b) the ACMA does not make a decision on the application within 26 weeks after receiving the application;
the ACMA is taken to have made, at the end of that 26‑week period, a decision under section 91 to refuse to renew the licence.
Notification
(2) If the ACMA receives an application for renewal, the ACMA must notify in the Gazette the fact that the application has been made.
91 ACMA may renew community broadcasting licences
(1) Subject to subsection (2), if the ACMA receives an application under section 90, the ACMA may, by notice in writing given to the licensee, renew the licence for:
(a) if:
(i) the ACMA renews the licence after the time when the licence was due to expire; and
(ii) under subsection 90(1E), the licence remained in force until the ACMA made a decision on the application;
the period:
(iii) beginning immediately after the time when the ACMA made a decision on the application; and
(iv) ending at the end of the period of 5 years that began immediately after the time when the licence was due to expire; or
(b) otherwise—the period of 5 years beginning immediately after the time when the licence is due to expire.
(2) The ACMA must refuse to renew a community broadcasting licence if the ACMA decides that subsection 83(2) applies to the licensee.