BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 NO. 2, 1986 BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 NO. 2, 1986 - TABLE OF PROVISIONS 1. Short title 2. Commencement 3. Principal Act 4. Membership of Board 5. 6. Disclosure of interests 7. Removal from office of non-executive Directors 8. Acting non-executive Directors 9. 10. Officers and temporary employees 11. Disciplinary Appeal Board 12. 13. Power of Minister to give directions to Corporation in the national interest 14. Matters to be included in annual report 15. Principal Act 16. Repeal of section 77 17. Application of Act 18. Programs 19. Special provisions relating to advertisements 20. Broadcasting or televising of political matter or controversial matter BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - LONG TITLE An Act relating to broadcasting and television BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 1 Short title (Assented to 19 February 1986) 1. This Act may be cited as the Broadcasting and Television Legislation Amendment Act 1986. (Minister's second reading speech made in- House of Representatives on 8th May 1985; Senate on 27th May 1985) BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 2 Commencement 2. This Act shall come into operation on the day on which it receives the Royal Assent. BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 3 Principal Act 3. The Australian Broadcasting Corporation Act 1983*1* is in this Part referred to as the Principal Act. *1*No. 6, 1983, as amended. For previous amendments see No. 91, 1983. BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 4 Membership of Board 4. (1) Section 12 of the Principal Act is amended - (a) by omitting paragraphs (1) (a) and (b) and substituting the following paragraphs: "(a) the Managing Director; (b) the staff-elected Director; and (c) not fewer than 5 nor more than 7 other Directors"; (b) by omitting from sub-sections (2) and (5) "non-executive Director" and substituting "Director referred to in paragraph (1) (c)"; and (c) by omitting sub-section (4) and substituting the following sub-sections: "(4) The performance of the functions or the exercise of the powers of the Board is not affected by a vacancy in the office of Managing Director or staff-elected Director, by reason that there is no Chairman or Deputy Chairman or by reason of the number of Directors referred to in paragraph (1) (c) falling below 5 for not longer than 6 months. "(4A) If an election of a person as the staff-elected Director or as the deputy of the staff-elected Director is invalid by reason of a defect or irregularity in or in connection with that election, the performance of the functions or the exercise of the powers of the Board is not affected by anything done or omitted to be done by or in relation to that person while he or she purported to be, or to act as, the staff-elected Director.". (2) Except as provided by sub-sections (3) and (4), the amendments made by sub-section (1) do not affect the appointments or tenure of office of the non-executive Directors who held office immediately before the commencement of this Act. (3) Notwithstanding the amendments of the Principal Act made by this Act, if, immediately before the day of commencement of this Act, Thomas Molomby held office as a non-executive Director of the Corporation pursuant to an appointment made under the Principal Act and he would have continued to hold that office on that day if this Act had not been enacted, then he shall cease to hold that office upon the commencement of this Act but shall, subject to the Principal Act as amended by this Act, hold office after that commencement as the staff-elected Director as if he had been duly elected to that last-mentioned office under the Principal Act as so amended for a period equal to the remainder of the period of the appointment as a non-executive Director that he held immediately before that commencement. (4) If - (a) sub-section (3) applies to Thomas Molomby; and (b) he is elected as the staff-elected Director at the first election to be held after the commencement of this Act, he is not eligible for election at the next following election of the staff-elected Director. BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 5 5. (1) After section 13 of the Principal Act the following sections are inserted: Staff-elected Director "13A. (1) Subject to this section, the staff-elected Director shall be elected in accordance with the regulations. "(2) Subject to sub-section (6), a person is eligible to be a candidate for election, and to hold office, as the staff-elected Director if - (a) the person is an officer or temporary employee of the Corporation who, by the terms of his or her employment, is required to devote at least 24 hours per week to the duties of that employment; (b) the person performs services for the Corporation, under the direction and control of the Managing Director or an officer or temporary employee of the Corporation, pursuant to - (i) a written contract entered into between the Corporation and the person performing the services; or (ii) a written contract entered into between the Corporation and a person other than the person performing the services, being a contract that specified the last-mentioned person as the person who would perform the services under the contract; or (c) the person is included in a prescribed class of persons, being persons who perform services for the Corporation pursuant to a contract, other than a contract referred to in paragraph (b), under the direction and control of the Managing Director or an officer or temporary employee of the Corporation. "(3) Where a person who has been nominated as a candidate for election as the staff-elected Director ceases to be eligible to be such a candidate after having been nominated and before the day on which the election takes place - (a) if there are 2 or more other eligible candidates - the election shall be held as if the person were not a candidate; (b) if there is only one other eligible candidate - the other candidate shall be declared to be elected; or (c) if there is no other eligible candidate - fresh invitations shall be issued for the nomination of candidates. "(4) A person who is eligible to be a candidate for election, and to hold office, as the staff-elected Director is eligible to vote at the election. "(5) Subject to sections 16 and 18, the staff-elected Director holds office on a part-time basis for a period of 2 years commencing - (a) if, on the day on which the staff-elected Director is declared to be elected, the person so declared to be elected already holds office as the staff-elected Director pursuant to a previous election - on the day next following the day on which that person would, but for having been re-elected, cease to hold office; (b) if, on the day on which the staff-elected Director is declared to be elected, another person holds office as the staff-elected Director pursuant to a previous election - on the day next following the day on which the other person ceases to hold office; or (c) in any other case - on the day on which the staff-elected Director is declared to be elected. "(6) A person who has been elected as the staff-elected Director at 2 successive elections is not eligible for election at the next following election of the staff-elected Director. Deputy of staff-elected Director "13B. (1) For the purposes of this Act, there shall be a deputy of the staff-elected Director, who shall be elected in accordance with the regulations. "(2) A person is eligible to be a candidate for election, and to hold office, as the deputy of the staff-elected Director if, were the election an election of the staff-elected Director, the person would be eligible to be a candidate at the election and, in the event of being elected as the staff-elected Director at the election, would be eligible to hold that office. "(3) A person who is eligible to be a candidate for election, and to hold office, as the deputy of the staff-elected Director is eligible to vote at the election. "(4) The deputy of the staff-elected Director holds office for a period of 2 years commencing - (a) if, on the day on which the deputy is declared to be elected, the person so declared to be elected already holds office as the deputy of the staff-elected Director pursuant to a previous election - on the day next following the day on which that person would, but for having been re-elected, cease to hold office; (b) if, on the day on which the deputy is declared to be elected, another person holds office as the deputy of the staff-elected Director pursuant to a previous election - on the day next following the day on which the other person ceases to hold office; or (c) in any other case - on the day on which the deputy is declared to be elected. "(5) The deputy of the staff-elected Director - (a) may resign from office by notice in writing given to the Managing Director; and (b) ceases to hold office if he or she becomes the staff-elected Director. "(6) Section 18 applies to and in relation to the deputy of the staff-elected Director as if - (a) paragraph 18 (2) (c) were omitted; and (b) the deputy were the staff-elected Director. "(7) If there is no staff-elected Director, or the staff-elected Director is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the office of staff-elected Director, the deputy of the staff-elected Director may act as the staff-elected Director during the vacancy or the period of the absence or inability. "(8) The deputy of the staff-elected Director shall not act as the staff-elected Director during a vacancy in the office of the staff-elected Director for a continuous period of more than 6 months. "(9) While the deputy of the staff-elected Director is acting as the staff-elected Director - (a) the deputy shall be paid the same allowances as are payable to the staff-elected Director; and (b) the deputy has and may exercise all the powers, and shall perform all the functions and duties, of the staff-elected Director under this Act. "(10) The validity of anything done by or in relation to the deputy of the staff-elected Director while the deputy is purporting to act as the staff elected Director shall not be called in question on the ground that the occasion for the deputy to act had not arisen or had ceased.". (2) If it is necessary to hold an election of the staff-elected Director or an election of the deputy of the staff-elected Director before regulations are made for the purposes of section 13A or section 13B, as the case requires, of the Principal Act as amended by this Act, the election shall be held in such manner as is approved by the Board. (3) Where, before the commencement of this Act, a purported election of a person as the staff-elected Director or as the deputy of the staff-elected Director was held or commenced to be held in a manner approved by the Board, the purported election so held, or the purported election so commenced to be held as completed after the commencement of this Act, shall be deemed to have been or to be as valid and effectual as it would have been or would be if it had been or were held after the commencement of this Act in accordance with sub-section (2). (4) An election of the staff-elected Director to which sub-section (3) applies shall, for the purposes of sub-section 4 (4), be deemed to be the first election of the staff-elected Director to be held after the commencement of this Act. BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 6 Disclosure of interests 6. Section 17 of the Principal Act is amended by inserting after sub-section (1) the following sub-section: "(1A) Where a matter being considered or about to be considered by the Board relates to the terms and conditions of employment of officers or temporary employees, or to the terms and conditions on which a person performs services for the Corporation pursuant to a contract, sub-section (1) does not require the staff-elected Director or the deputy of the staff-elected Director to disclose an interest that he or she has by reason of being such an officer or temporary employee or performing services pursuant to the contract.". BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 7 Removal from office of non-executive Directors 7. Section 18 of the Principal Act is amended - (a) by omitting from sub-section (1), "terminate the appointment of a non-executive Director" and substituting "remove a non-executive Director from office"; (b) by inserting after paragraph (2) (a) the following paragraph: "(aa) a staff-elected Director who is eligible to hold office as such a Director under paragraph 13A (2) (a) or paragraph 13A (2) (b) - (i) ceases to be eligible to hold office under the relevant paragraph; and (ii) is not, upon so ceasing, eligible to hold office under another paragraph of sub-section 13A (2);"; (c) by omitting from sub-section (2), "terminate the appointment of the Director concerned" and substitute "remove the Director concerned from office"; and (d) by adding at the end the following sub-section: "(3) If, in the case of a staff-elected Director who is eligible to hold office as such a Director under paragraph 13A (2) (c), the prescribed circumstances occur and the staff-elected Director is not eligible to hold office under paragraph 13A (2) (a) or (b), the Governor-General shall remove the staff-elected Director concerned from office.". BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 8 Acting non-executive Directors 8. Section 21 of the Principal Act is amended by adding at the end the following sub-section: "(7) In this section, 'non-executive Director' does not include the staff-elected Director.". BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 9 9. After section 25 of the Principal Act the following section is inserted: Power to form companies, &c. "25A. (1) In this section - 'authorized business' means a business or other activity related to or incidental to the performance of any of the functions of the Corporation; 'prescribed company' means a company that carries on, or proposes to carry on, an authorized business. "(2) The Corporation may - (a) form, or participate with other persons in the formation of, a company to carry on an authorized business; (b) acquire, hold and dispose of shares or stock in the capital of, or debentures or other securities of, a prescribed company; (c) enter into a partnership, or an arrangement for the sharing of profits or expenses, with a prescribed company for the purpose of carrying on an authorized business; and (d) provide technical or other assistance and facilities (whether in or outside Australia) for a prescribed company or for a partnership, or for the purposes of an arrangement, referred to in paragraph (c). "(3) The Corporation shall not exercise a power conferred by sub-section (2), or expend money in connection with the carrying on of an authorized business, except with the approval of the Minister. "(4) An agreement or arrangement between the Corporation and a prescribed company shall include a term empowering the Corporation to terminate the agreement or arrangement if the prescribed company ceases to be a prescribed company. "(5) Where - (a) the Corporation has an interest in, or is a party to an agreement or arrangement with, a prescribed company; and (b) the prescribed company ceases to be a prescribed company, the Minister may give to the Corporation such directions as the Minister thinks appropriate with respect to - (c) the disposal of the interest of the Corporation in the company; or (d) the termination of the agreement or arrangement between the Corporation and the company, as the case may be, and the Corporation shall comply with any such directions. "(6) This section does not authorize a prescribed company to carry on a prescribed business otherwise than in accordance with the relevant law.". BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 10 Officers and temporary employees 10. Section 33 of the Principal Act is amended - (a) by omitting sub-section (2) and substituting the following sub-sections: "(2) A person appointed as an officer under sub-section (1) shall be appointed to a particular position in the Service or as an unattached officer in the Service. "(2A) A person appointed as an unattached officer shall have such classification as the Managing Director determines to be appropriate to the duties of the person. "(2B) A person shall not be appointed as an unattached officer unless the person is qualified for appointment to a position having a classification corresponding to the classification of the person as an unattached officer. "(2C) An unattached officer who held a position immediately before becoming an unattached officer shall, until the officer ceases to be an unattached officer, have a classification corresponding to the classification of that position."; and (b) by omitting from sub-section (3) "An unattached officer or a" and substituting "A". BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 11 Disciplinary Appeal Board 11. Section 66 of the Principal Act is amended - (a) by inserting "and Division 5" after "Division" in sub-section (1); and (b) by omitting "under section 65" from sub-sections (9) and (10). BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 12 12. After Division 4 of Part V of the Principal Act the following Division is inserted: "Division 5 - Forfeiture of Office Forfeiture of office "66A. (1) Where an officer is absent from duty without permission, and has been so absent for a continuous period of not less than 4 weeks, the Managing Director may send to the officer by pre-paid registered post addressed to the officer at his or her address last known to the Managing Director a notice informing the officer that, unless within a period of 2 weeks from an including the day on which the notice was sent - (a) the officer returns to duty; or (b) the officer explains the absence and seeks the permission of the Managing Director for any further period of absence that may be necessary having regard to that explanation, the officer will be deemed to have retired from the Service at the end of that period of 2 weeks. "(2) Where an officer to whom a notice under sub-section (1) has been sent does not, within the period of 2 weeks from and including the day on which the notice was so sent - (a) return to duty; or (b) explain the absence and seek the permission of the Managing Director for a further period of absence, and the notice has not been revoked under sub-section (5), the officer shall be deemed to have retired from the Service at the end of that period of 2 weeks. "(3) Where a notice has been sent to an officer under sub-section (1) and, within the period of 2 weeks after that notice was so sent, the officer explains the absence and seeks the permission of the Managing Director for a further period of absence, the Managing Director shall, as soon as practicable, consider the matter and may, by notice in writing (in this sub-section referred to as the 'relevant notice') sent to the officer by pre-paid registered post addressed to the officer at his or her address last known to the Managing Director, inform the officer - (a) that the officer has been granted leave of absence for such period and on such conditions as are specified in the relevant notice; or (b) that the officer is required to return to duty and that, unless the officer returns to duty within a specified period (being a period of at least 2 weeks from and including the day on which the relevant notice is sent) he or she will be deemed to have retired from the Service at the end of the period so specified. "(4) Where an officer who is required by a notice sent to the officer under sub-section (3) to return to duty does not return to duty within the period referred to in the notice and the notice is not revoked under sub-section (5), the officer shall be deemed to have retired from the Service at the end of that period. "(5) The Managing Director may, at any time before an officer is deemed to have retired from the Service under this section, by notice in writing sent to the officer by pre-paid registered post addressed to the officer at his or her address last known to the Managing Director, revoke a notice previously sent to the officer under this section, and the last-mentioned notice then has no effect. Re-appointment of officers deemed to have retired under section 66A "66B. (1) A person who is deemed to have retired from the Service in accordance with sub-section 66A (2) or (4) may apply to the Managing Director, in writing, for re-appointment to the Service. "(2) Where a person makes application to the Managing Director under sub-section (1), the Managing Director shall consider the application and - (a) if satisfied that the applicant had, in all the circumstances, reasonable grounds for being absent - notify the applicant, in writing, that the applicant is to be re-appointed to the Service; or (b) if not so satisfied - notify the applicant, in writing, that the application is refused and give to the applicant, in writing, the reasons for the refusal. "(3) Where an applicant is notified in accordance with paragraph (2) (b) that the application under sub-section (1) is refused, the applicant may appeal to the Disciplinary Appeal Board against the refusal. "(4) The Disciplinary Appeal Board shall hear each appeal made to it under sub-section (3) and may - (a) confirm the refusal appealed against; or (b) recommend to the Managing Director that the appellant be re-appointed to the Service, and shall give to the appellant and the Managing Director, in writing, the reasons for its decision on the appeal. "(5) Where the Managing Director decides to re-appoint a person to the Service in accordance with paragraph (2) (a) or receives a recommendation of the Disciplinary Appeal Board under sub-section (4) that a person be re-appointed to the Service, the Managing Director shall re-appoint the person - (a) if the person held a position in the Service at the time of retirement - to fill that position or an equivalent position or, if such a position is not available, an available position as nearly as possible equivalent to the first-mentioned position or, with the consent in writing of the person, another position; or (b) if the person was an unattached officer at the time of retirement - to be an unattached officer with the classification that the person had at the time of retirement. "(6) Where a person who is, under section 66A, deemed to have retired from the Service is re-appointed to the Service under this section, the person shall be deemed, during the period commencing on the day immediately following the day on which the person is so deemed to have retired from the Service and ending on the day immediately preceding the day on which the person was so re-appointed, to have continued in the Service, and to have been absent from duty on leave of absence without pay, and the Managing Director shall determine whether that period, or any part of that period, is to form part of the person's period of service for any purposes under this Act or any other Act (other than the Superannuation Act 1976) and, if so, the purposes for which it is to form part of the period of the person's service.". BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 13 Power of Minister to give directions to Corporation in the national interest 13. Section 78 of the Principal Act is amended - (a) by omitting sub-section (2); and (b) by omitting "Sub-sections (1) and (2) have" from sub-section (3) and substituting "Sub-section (1) has". BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 14 Matters to be included in annual report 14. (1) Section 80 of the Principal Act is amended by omitting paragraph (b). (2) Notwithstanding the amendment made by sub-section (1), section 80 of the Principal Act continues to apply in relation to directions given to the Corporation by the Minister under sub-section 78 (2) of that Act before the repeal of that last-mentioned sub-section. BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 15 Principal Act 15. The Broadcasting and Television Act 1942*2* is in this Part referred to as the Principal Act. *2*No. 33, 1942, as amended. For previous amendments, see No. 39, 1946; No. 64, 1948; No. 80, 1950; No. 41, 1951; No. 12, 1953; No. 82, 1954; Nos. 33, 65 and 92, 1956; No. 36, 1960 (as amended by No. 32, 1961); No. 96, 1962; No. 82, 1963; Nos. 67 and 121, 1964; Nos. 38 and 120, 1965; No. 57, 1966; No. 47, 1967; No. 69, 1968; Nos. 21 and 31, 1969; Nos. 8, 72 and 136, 1971; No. 49, 1972; No. 50, 1973; No. 216, 1973 (as amended by No. 20, 1974); No. 55, 1974; No. 56, 1975; Nos. 89, 157 and 187, 1976; No. 160, 1977; Nos. 36, 52 and 210, 1978; Nos. 143 and 177, 1980; Nos. 61, 113 and 153, 1981; No. 154, 1982; Nos. 7, 37, 39, 91 and 136, 1983; and Nos. 10, 63, 72 and 165, 1984. BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 16 Repeal of section 77 16. Section 77 of the Principal Act is repealed. BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 17 Application of Act 17. Section 79ZJ of the Principal Act is amended by omitting from sub-section (1) ",77". BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 18 Programs 18. Section 99 of the Principal Act is amended by omitting sub-section (3). BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 19 Special provisions relating to advertisements 19. Section 100 of the Principal Act is amended by adding at the end of sub-section (6) ", provided that, where a period of 60 days has elapsed from the date of lodgement of the text of the proposed advertisement and the Secretary to the Department of Health or the Secretary's delegate has not notified approval or disapproval of the text, the licensee may broadcast or televise the advertisement in the terms of the text as lodged with the Secretary or the Secretary's delegate". BROADCASTING AND TELEVISION LEGISLATION AMENDMENT ACT 1986 No. 2 of 1986 - SECT 20 Broadcasting or televising of political matter or controversial matter 20. Section 116 of the Principal Act is amended by omitting sub-section (2).