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Automatic sunsetting of legislative instruments
Under Part 4 of Chapter 3 of the Legislation Act 2003, most legislative instruments ‘sunset’ (that is, they are automatically repealed) on the 1 April or 1 October that first occurs 10 years after they are registered. This is an automatic process applying to most legislative instruments regardless of their particular content.
Among the legislative instruments made by the ACMA, which are due to sunset in the near future, is the following instrument, due to sunset on the following date:
The instrument can be found on the Federal Register of Legislation at www.legislation.gov.au.
The instrument sets out a price-based allocation system (English open-outcry auction) for issuing commercial television and commercial radio broadcasting licences in the broadcasting services bands, as required under subsection 36(1) of the Broadcasting Services Act 1992.
The ACMA has formed the preliminary view that this instrument is operating effectively and efficiently and, as such, continues to form a necessary and useful part of the legislative framework. Accordingly, the ACMA proposes to repeal and remake it in a new instrument prior to the sunset date, with some changes, so that its ongoing effect is preserved.
It should be noted that the ACMA has no current plans to allocate any commercial broadcasting licences. Should this change in the future, any instrument in place under subsection 36(1) of the Broadcasting Services Act will be reviewed to ensure that the most appropriate price-based allocation methodology is in place.
Some changes are proposed for the replacement determination to ensure it is consistent with current ACMA allocation practices.
Proposed changes include:
- Referencing the Broadcasting (Charges) Determination 2017 as the instrument that sets the application fee.
- Adding an application form, which includes the applicant’s name and the commercial broadcasting licence being applied for.
- Updating the details for payments to be made to the ACMA.
- Clarifying the identification requirements for bidders at a licence allocation exercise to include a passport or an Australian driver’s licence.
- Allowing for telephone bidding.
- Clarifying the details about the conditions under which a licence is to be re-offered if an initial licence allocation exercise is not completed, including the arrangements for notifying and conducting the new licence allocation exercise, and the rights of registered applicants.
- Requiring all applicants to pay a deposit or deed of financial security as part of the application process. The amount of the deposit required by applicants will be set by the ACMA.
- Enabling the time allowed for payment of the balance of the reserve price or the winning price to be set by the ACMA.
- Enabling the ACMA to retain the deposit or enforce a deed of financial security if there has been a breach of the allocation procedures. Applicants can apply to the Federal Court for the return of all or part of the deposit.
- Enabling the ACMA to obtain information from applicants and authorised agents relevant to the performance of any of the ACMA’s functions or the exercise of its powers under the instrument.
Issue for comment
Opportunity to provide feedback:Feedback is sought on the proposed remade instrument, the draft Commercial Broadcasting Licence Allocation Determination 2018, by close of business, Friday 2 March 2018.