42Liability of person for failure to comply

42 Liability of person for failure to comply

This Determination does not affect any right of the ACMA to recover damages (including damages of an amount greater than the amount of the highest bid) from a successful applicant, or any other person, for a failure by the successful applicant, or its authorised agent, to comply with section 25 or 32.

43 Retention of deposit or enforcement of deed for breach of procedures

(1) The ACMA on behalf of the Commonwealth may retain a deposit made by an applicant, or enforce a deed of financial security given by an applicant; if:

(a) the ACMA is satisfied that:

(i) the applicant or a related person of the applicant, breached a provision of this Determination; and

(ii) the breach affected, or may have affected, the outcome of the allocation process; or

(b) the applicant is a successful applicant who failed to pay the balance of the winning price as required under section 25; or

(c) the applicant failed to pay the balance of the reserve price as required under section 32; or

(d) the applicant or authorised agent failed to comply with a requirement in a notice given under subsection 35(1).

(2) The ACMA must notify the applicant, in writing, of a decision under subsection (1) and the nature of the breach or failure before the later of:

(a) 6 months after the end of the Licence Allocation Exercise; and

(b) 6 months after the day on which the breach or failure mentioned in subsection (1) occurred.

(3) A deposit retained under this section, or an amount obtained through enforcement of a deed of financial security, is forfeited to the Commonwealth unless the Federal Court orders the return of the amount under section 45.

44 Effect of retention on successful applicants

If the ACMA makes a decision under subsection 43(1) in relation to a successful applicant, the ACMA must not allocate the relevant commercial broadcasting licence to the successful applicant.

45 Application to Federal Court for return of retained amount

(1) An applicant who has been notified by the ACMA under subsection 43(2) may, within one year of receiving the notice, apply to the Federal Court for return of all or part of a deposit or an amount secured by a deed of financial security.

(2) On application, the Federal Court may:

(a) if the Court is not satisfied that the applicant or authorised agent committed the breach or failure identified in the notice given by the ACMA – order the return of all the amount retained by the ACMA; or

(b) if the Court is satisfied that the applicant or authorised agent committed the breach or failure, but considers that it would be disproportionate for the full amount to be retained – order the return of part of the amount retained by the ACMA.