(2A) The ACMA may refuse to renew a community broadcasting licence that is a broadcasting services bands licence if, having regard to the following, the ACMA considers that the licence should not be renewed:
(a) the extent to which the service or services provided under the licence, if renewed, would continue to meet the existing and perceived future needs of the community within the licence area;
(b) the nature and diversity of the interests of that community;
(c) the extent to which the service or services provided under the licence, if renewed, would continue to provide material of local significance;
(d) the nature and diversity of other broadcasting services (including national broadcasting services) available within that licence area;
(e) the capacity of the licensee to continue to provide the service or services;
(f) 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;
(g) 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) The ACMA is not required to conduct an investigation or a hearing into whether a licence should be renewed.
91A Transfer of community broadcasting licences
Application for approval of transfer
(1) A community broadcasting licensee may apply to the ACMA for approval of the transfer of the community broadcasting licence to another person.
(2) Applications must:
(a) be in accordance with a form approved in writing by the ACMA; and
(b) be accompanied by the application fee determined in writing by the ACMA.
Decision about approval of transfer
(3) After considering an application for approval of the transfer of a community broadcasting licence, the ACMA must, by written notice given to the applicant:
(a) approve the transfer; or
(b) refuse to approve the transfer.
Criteria
(4) The ACMA must not approve the transfer of a community broadcasting licence that is a broadcasting services bands licence if:
(a) the proposed transferee is not a company that:
(i) was formed in Australia or in an external Territory; and
(ii) represents a community interest; or
(b) in the case of a transfer of a CTV licence—the proposed transferee is not a company limited by guarantee within the meaning of the Corporations Act 2001; or
(c) the ACMA decides that subsection 83(2) applies to the proposed transferee.
(5) Paragraph (4)(c) does not require the ACMA to consider the application of subsection 83(2) in relation to a proposed transferee before approving the transfer of a licence to the proposed transferee.
(6) The ACMA must not approve the transfer of a community broadcasting licence unless the ACMA is satisfied that:
(a) if the licence has not been renewed—the proposed transferee represents the same community interest as the original licensee represented when the licence was allocated; or
(b) if the licence has been renewed on one or more occasions—the proposed transferee represents the same community interest as the applicant for renewal represented when the licence was last renewed.
(7) In deciding whether to approve the transfer of a community broadcasting licence, the ACMA must have regard to:
(a) the principle that, except in special circumstances, the transfer should not be approved if consideration has been, or is to be, provided to the applicant in relation to the proposed transfer; and
(b) such other matters (if any) as the ACMA considers relevant.
Transfer
(8) If the ACMA has approved the transfer of a community broadcasting licence to a particular person, the community broadcasting licensee may, within 90 days after the approval was given, transfer the community broadcasting licence to the person.
92 Surrender of community broadcasting licences
A community broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence.
Part 6A—Temporary community broadcasting licences
92A Interpretation
In this Part:
company includes an incorporated association.
licence period means the period of a temporary community broadcasting licence determined by the ACMA under paragraph 92G(1)(c) or varied by the ACMA under section 92J.
timing conditions means the conditions of a temporary community broadcasting licence that:
(a) are about the times in which the licence allows community broadcasting services to be provided; and
(b) are determined by the ACMA under paragraph 92G(1)(b) or varied by the ACMA under section 92J.
92B Temporary community broadcasting licences
(1) The ACMA may allocate to a person, on application in writing by the person, a temporary community broadcasting licence.
(2) Applications must be in accordance with a form approved in writing by the ACMA.
92C Applicants for temporary community broadcasting licences
(1) The ACMA is not to allocate a temporary community broadcasting licence to an applicant unless the applicant:
(a) is a company that is formed in Australia or in an external Territory; and
(b) represents a community interest.
Note: See also section 96B of the Radiocommunications Act 1992, which provides that licences for television services under this Part must not be granted to new holders after 30 June 2021.
(2) The ACMA is not to allocate a licence to an applicant if the ACMA decides that subsection 92D(2) applies to the applicant in relation to the licence. However, the ACMA is not required to consider the application of subsection 92D(2) to the applicant before allocating the licence.
(3) The ACMA may refuse to allocate a licence to an applicant if the applicant was a temporary community broadcasting licensee for a period but did not provide community broadcasting services in that period. This subsection does not limit the ACMA’s discretion to refuse to allocate a licence.
92D When applicants and licensees are regarded as suitable
(1) A company is a suitable applicant or suitable licensee in relation to a temporary community broadcasting licence if the ACMA has not decided that subsection (2) applies to the company in relation to the licence.
Note: It is a condition of a temporary community broadcasting licence that the licensee remain a suitable licensee: see paragraph 9(2)(a) of Schedule 2.
(2) The ACMA may, if it is satisfied that allowing a company to provide or continue to provide broadcasting services under a temporary community broadcasting licence would lead to a significant risk of:
(a) an offence against this Act or the regulations being committed; or
(aa) a breach of a civil penalty provision occurring; or
(b) a breach of the conditions of the licence occurring;
decide that this subsection applies to the company in relation to the licence.
(3) In deciding whether such a risk exists, the ACMA is to take into account only:
(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).
92E Criteria for deciding whether to allocate a licence
(1) In deciding whether to allocate a temporary community broadcasting licence to an applicant or to one of a group of applicants, the ACMA may have regard to:
(a) 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
(b) the undesirability of the Commonwealth, a State or a Territory or a political party being in a position to exercise control of a temporary community broadcasting licence.
(2) In deciding whether to allocate a temporary community broadcasting licence to an applicant or to one of a group of applicants, the ACMA may also have regard to:
(a) the extent to which the proposed service 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) the extent to which the proposed service would provide material of local significance (within the meaning of subsection 84(3)); 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.
92F Licences to accord with alternative planning procedures
(1) The ACMA is not to allocate a temporary community broadcasting licence except in accordance with a determination of the ACMA under section 34.
(2) If the ACMA specifies in the determination a maximum number of temporary community broadcasting licences for the purposes of subsection 34(2A), the ACMA is not to allocate a temporary community broadcasting licence if that number would be exceeded.
92G Licence area, timing conditions and licence period
(1) Before allocating a temporary community broadcasting licence, the ACMA is to:
(a) designate a particular area in Australia as the licence area of the licence; and
(b) determine the timing conditions of the licence; and
(c) determine a period:
(i) starting on a day determined by the ACMA; and
(ii) ending not later than 12 months after that day;
as the licence period.
(2) In determining the timing conditions and licence period, the ACMA is to have regard to:
(a) any other applications for temporary community broadcasting licences in the licence area of the proposed licence; and
(b) any other temporary community broadcasting licences in the licence area of the proposed licence; and
(c) such other matters as the ACMA thinks fit.
92H Conditions of temporary community broadcasting licences
Each temporary community broadcasting licence is subject to:
(a) the conditions set out in Part 5 (other than paragraph 9(1)(h)) of Schedule 2; and
(b) the timing conditions; and
(c) such other conditions as are imposed under section 92J.
92J ACMA may vary conditions or periods, or impose new conditions
(1) The ACMA may, by notice in writing given to a temporary community broadcasting licensee:
(a) vary or revoke a condition of the licence (including a timing condition); or
(b) impose an additional condition on the licence; or
(c) vary the licence period.
(2) Without limiting subsection (1), the ACMA may impose an additional condition on a licence:
(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.
(3) An additional condition of a licence must be relevant to community broadcasting services.
(4) If the ACMA proposes to vary or revoke a condition, impose an additional condition or vary the licence period, the ACMA is to 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.
(5) This section does not allow the ACMA:
(a) to vary or revoke a condition set out in Part 5 of Schedule 2; or
(b) to vary or revoke a timing condition so that there are no times in which the licence allows community broadcasting services to be provided; or
(c) to vary the licence period so that the period is longer than 12 months.
(6) If the ACMA varies or revokes a condition (other than a timing condition), imposes an additional condition or varies the licence period, the ACMA is to publish the fact of the variation, revocation or additional condition in the Gazette.
(7) 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 (other than paragraph 9(1)(h)) of Schedule 2.
92K Duration of temporary community broadcasting licences
Subject to section 92L and Part 10, a temporary community broadcasting licence remains in force for the licence period.
92L Surrender of temporary community broadcasting licences
A temporary community broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence.
Part 7—Subscription television broadcasting services
Division 1—Allocation of subscription television broadcasting licences
95 When subscription television broadcasting licence must not be allocated
(1) A subscription television broadcasting licence is not to be allocated to an applicant if:
(a) the applicant is not a company that is registered under Part 2A.2 of the Corporations Act 2001 and has a share capital; or
(b) the ACMA decides that subsection 98(2) applies to the applicant.
(2) Paragraph (1)(b) does not require the ACMA to consider the application of subsection 98(2) in relation to an applicant before a subscription television broadcasting licence is allocated to the applicant.
96 Allocation of other subscription television broadcasting licences
(1) The ACMA may allocate to a person, on application in writing by the person, a subscription television broadcasting licence.
(2) Licences under subsection (1) are to be allocated on the basis of one licence per service.
(4) Applications must:
(a) be in accordance with a form approved in writing by the ACMA; and
(b) be accompanied by the application fee determined by the ACMA.
(5) The ACMA must not allocate a subscription television broadcasting licence under this section if the Australian Competition and Consumer Commission has reported, within 30 days after being requested for a report under section 97, that, in the opinion of the Australian Competition and Consumer Commission, the allocation of the licence to the applicant:
(a) would constitute a contravention of section 50 of the Competition and Consumer Act 2010 if the allocation of the licence were the acquisition by the applicant of an asset of a body corporate; and
(b) would not be authorised under section 88 of that Act if the applicant had applied for such an authorisation.
(6) If a licence is allocated under this section, the ACMA must publish in the Gazette the name of the successful applicant.
97 Requests to Australian Competition and Consumer Commission
(1) Before a subscription television broadcasting licence is allocated to a person under section 96, the ACMA must request the Australian Competition and Consumer Commission to provide a report under this section.
(2) The report is to advise whether, in the opinion of the Australian Competition and Consumer Commission, the allocation of the licence to the applicant:
(a) would constitute a contravention of section 50 of the Competition and Consumer Act 2010 if the allocation of the licence were the acquisition by the applicant of an asset of a body corporate; and
(b) would not be authorised under section 88 of that Act if the applicant had applied for such an authorisation.
(3) For the purposes of the consideration of a request by the Australian Competition and Consumer Commission, section 155 of the Competition and Consumer Act 2010 applies as if the allocation of a licence under this Part were a matter referred to in subsection (1) of that section.
98 Suitability for allocation of licence
(1) For the purposes of this Part, a company is a suitable subscription television broadcasting licensee or a suitable applicant for a subscription television broadcasting licence if the ACMA has not decided that subsection (2) applies to the person.
(2) The ACMA may, if it is satisfied that allocating a subscription television broadcasting licence to a particular company or allowing a particular company to continue to hold a subscription television broadcasting licence would lead to a significant risk of:
(a) an offence against this Act or the regulations being committed; or
(aa) a breach of a civil penalty provision occurring; or
(b) a breach of the conditions of the licence occurring;
decide that this subsection applies to the company.
(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 each person who is, or would be, if a subscription television broadcasting licence were allocated to the applicant, in a position to exercise control of the licence; 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).
98D Compensation
(1) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.