Prepared by the Office of Parliamentary Counsel, Canberra
Broadcasting Services Act 1992 No. 110, 1992 as amended
Compilation start date: 1 October 2013
Includes amendments up to: Act No. 103, 2013 This compilation has been split into 2 volumes
Volume 1: sections 1–218 Schedules 1 and 2
Volume 2: Schedules 4–7 Endnotes
Each volume has its own contents
About this compilation This compilation
This is a compilation of the Broadcasting Services Act 1992 as in force on 1 October 2013. It includes any commenced amendment affecting the legislation to that date.
This compilation was prepared on 3 October 2013.
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of each amended provision.
Uncommenced amendments
The effect of uncommenced amendments is not reflected in the text of the compiled law but the text of the amendments is included in the endnotes.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Modifications
If a provision of the compiled law is affected by a modification that is in force, details are included in the endnotes.
Provisions ceasing to have effect
If a provision of the compiled law has expired or otherwise ceased to have effect in accordance with a provision of the law, details are included in the endnotes.
Broadcasting Services Act 1992 i
Contents Part 1—Preliminary 1
1 Short title...........................................................................1 2 Commencement.................................................................1 3 Objects of this Act.............................................................1 4 Regulatory policy ..............................................................3 5 Role of the ACMA ............................................................5 6 Interpretation .....................................................................5 7 Interpretation—meaning of control .................................19 8 Interpretation—shareholding interests, voting
interests, dividend interests and winding-up interests ...........................................................................19
8A Captioning taken to be part of program...........................21 8AA Designated community radio broadcasting licence .........21 8AB Digital program enhancement content taken to be a
radio program ..................................................................22 8AC Digital radio start-up day.................................................22 8AD Deemed radio broadcasting licence areas........................24 8AE Final digital television switch-over day...........................26 8AF Regional racing service radio licence ..............................26 8B Remote Indigenous community.......................................27 9 Act to bind the Crown .....................................................28 10 Extension of Act to the external Territories.....................28 10A Application of the Criminal Code ...................................28
Part 2—Categories of broadcasting services 29 11 Categories of broadcasting services.................................29 11A Dual categorisation of international broadcasting
services............................................................................29 12 Method of regulating particular services .........................29 13 National broadcasting services ........................................30 14 Commercial broadcasting services ..................................31 15 Community broadcasting services...................................31 16 Subscription broadcasting services..................................32 17 Subscription narrowcasting services................................32 18 Open narrowcasting services ...........................................32 18A International broadcasting services..................................33 19 ACMA may determine additional criteria or
clarify existing criteria.....................................................34 20 Determinations and clarifications to be
disallowable by the Parliament........................................35
ii Broadcasting Services Act 1992
21 Requests to ACMA to decide which category a broadcasting service falls into .........................................35
22 Matters to be considered by ACMA................................37
Part 3—Planning of the broadcasting services bands 38 23 Planning criteria ..............................................................38 24 ACMA to determine priorities.........................................38 25 Preparation of frequency allotment plans ........................39 26 Preparation of licence area plans .....................................40 26A Licence area plans—multi-channelled commercial
television broadcasting services ......................................44 26AA Compliance with television licence area plan..................45 26B Licence area plans—multi-channelled national
television broadcasting services ......................................46 26C Licence area plans not required to deal with
certain digital radio broadcasting services.......................47 26D Licence area plans—how digital radio
broadcasting services may be dealt with .........................48 27 Processes to be public......................................................48 29 Designation of licence areas ............................................50 30 ACMA may determine population figures ......................50 31 Minister may reserve capacity for national
broadcasters or community broadcasters.........................51 32 Reservations to be disallowable by the Parliament..........51 33 Development of technical planning guidelines................51 34 Alternative uses of broadcasting services bands..............52 35 Notification of decisions under this Part .........................53
Part 4—Commercial television broadcasting licences and commercial radio broadcasting licences 54
Division 1—Allocation of licences 54 35C Digital radio moratorium.................................................54 35D Exception to the digital radio moratorium—failure
to provide a digital commercial radio broadcasting service .............................................................................54
36 ACMA to determine system for allocating licences ........56 36A Commercial radio broadcasting licences to provide
analog or digital commercial radio broadcasting services............................................................................56
37 When licences must not be allocated...............................58 37A Limitation on number of commercial television
broadcasting licences.......................................................58
Broadcasting Services Act 1992 iii
38 ACMA to advertise for applications for certain licences............................................................................58
38A Additional commercial television licences in single markets..................................................................59
38B Additional commercial television licences in 2-station markets .............................................................61
38C Commercial television broadcasting licences— services provided with the use of a satellite ....................67
39 Additional commercial radio licences in single markets ............................................................................74
40 Allocation of other licences.............................................77 41 When persons are regarded as suitable............................79
Division 2—Services authorised by licences 81 41A Services authorised by commercial television
broadcasting licences before 1 January 2009 ..................81 41B Services authorised by commercial television
broadcasting licences during so much of the simulcast period etc. as occurs on or after 1 January 2009 ................................................................82
41C Services authorised by commercial television broadcasting licences after the end of the simulcast period etc.........................................................................88
41CA Services authorised by commercial television broadcasting licences allocated under section 38C..........90
41D Services authorised by commercial radio broadcasting licences.......................................................94
Division 3—Licence conditions 97 42 Conditions of commercial broadcasting licences ............97 43 ACMA may impose additional conditions ......................97 43A Material of local significance—regional
aggregated commercial television broadcasting licences............................................................................98
43AA Local news to be provided to section 38C licensees by regional commercial television broadcasting licensees .....................................................99
43AB Commercial television programs to be provided to section 38C licensees by metropolitan commercial television broadcasting licensees...................................102
43AC Commercial television programs to be provided to section 38C licensees by remote terrestrial licensees ........................................................................104
43AD Compensation for acquisition of property .....................106 43B Local presence—regional commercial radio
broadcasting licences.....................................................106
iv Broadcasting Services Act 1992
43C Local content—regional commercial radio broadcasting licences.....................................................107
43D Special licence conditions relating to digital radio commercial broadcasting services .................................111
44 Matters to which conditions may relate.........................113
Division 4—General provisions 115 45 Duration of licences.......................................................115 46 Applications for renewal ...............................................115 47 ACMA to renew licences unless it is aware of
special circumstances ....................................................115 48 Transfer of commercial broadcasting licences ..............116 49 Surrender of commercial broadcasting licences ............116
Part 5—Control of commercial broadcasting licences and datacasting transmitter licences 117
Division 1—Preliminary 117 50A This Part does not apply in relation to licences
allocated under section 38C or subsection 40(1) ...........117 50 Interpretation—knowledge of company ........................117 51 Means of dealing with overlapping licence areas ..........117 51A This Part does not apply to certain channel B
datacasting transmitter licences .....................................118 52 Changes in licence area populations not to put
persons in breach of this Part.........................................118 52A Newspapers—additional constitutional basis ................118
Division 2—Limitation on control 119 Subdivision A—Commercial broadcasting licences 119
53 Limitation on control of commercial television broadcasting licences.....................................................119
54 Limitation on control of commercial radio broadcasting licences.....................................................119
Subdivision B—Commercial television broadcasting licences and datacasting transmitter licences 119
54A Limitation on control of commercial television broadcasting licences and datacasting transmitter licences..........................................................................119
Subdivision C—Commercial radio broadcasting licences and restricted datacasting licences 120
54B Limitation on control of commercial radio broadcasting licences and restricted datacasting licences during the digital radio moratorium period......120
Broadcasting Services Act 1992 v
Division 3—Limitation on directorships 121 Subdivision A—Television and radio 121
55 Limitation on numbers of directorships— television .......................................................................121
56 Limitation on numbers of directorships—radio.............122
Subdivision B—Television and datacasting 122 56A Limitation on directorships—television and
datacasting.....................................................................122
Division 5—Newspapers associated with licence areas 123 59 Newspapers associated with commercial television
or radio broadcasting licence areas................................123
Division 5A—Media diversity 126 Subdivision A—Introduction 126
61AA Definitions.....................................................................126 61AB Unacceptable media diversity situation .........................128 61AC Points.............................................................................128 61AD Statutory control rules ...................................................131 61AE Shared content test ........................................................131 61AEA Unacceptable 3-way control situation ...........................132 61AF Overlapping licence areas..............................................132
Subdivision B—Prohibition of transactions that result in an unacceptable media diversity situation coming into existence etc. 133
61AG Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—offence ........................................................133
61AH Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—civil penalty ................................................133
61AJ Prior approval of transactions that result in an unacceptable media diversity situation coming into existence etc. .................................................................134
61AK Extension of time for compliance with prior approval notice ..............................................................136
61AL Breach of prior approval notice—offence .....................137 61AM Breach of prior approval notice—civil penalty .............137
Subdivision BA—Prohibition of transactions that result in an unacceptable 3-way control situation coming into existence etc. 138
vi Broadcasting Services Act 1992
61AMA Prohibition of transactions that result in an unacceptable 3-way control situation coming into existence—offence ........................................................138
61AMB Prohibition of transactions that result in an unacceptable 3-way control situation coming into existence—civil penalty ................................................138
61AMC Prior approval of transactions that result in an unacceptable 3-way control situation coming into existence etc. .................................................................139
61AMD Extension of time for compliance with prior approval notice ..............................................................140
61AME Breach of prior approval notice—offence .....................141 61AMF Breach of prior approval notice—civil penalty .............142
Subdivision C—Remedial directions 142 61AN Remedial directions—unacceptable media
diversity situation ..........................................................142 61ANA Remedial directions—unacceptable 3-way control
situation.........................................................................145 61AP Extension of time for compliance with remedial
direction ........................................................................146 61AQ Breach of remedial direction—offence .........................148 61AR Breach of remedial direction—civil penalty..................148
Subdivision D—Enforceable undertakings 149 61AS Acceptance of undertakings ..........................................149 61AT Enforcement of undertakings ........................................149
Subdivision E—Register of Controlled Media Groups 150 61AU Register of Controlled Media Groups............................150 61AV How a media group is to be entered in the Register ......150 61AW Explanatory notes may be included in the Register.......151 61AX Continuity of media group.............................................151 61AY Initial registration of media groups................................151 61AZ Registration of newly-formed media group...................152 61AZA De-registration of media group that has ceased to
exist ...............................................................................155 61AZB Registration of change of controller of registered
media group...................................................................156 61AZC Registration of change of composition of media
group .............................................................................156 61AZCA ACMA must deal with notifications in order of
receipt............................................................................157 61AZD Conditional transactions ................................................157 61AZE Review and confirmation of entries and alterations
etc. .................................................................................159
Broadcasting Services Act 1992 vii
61AZF Reconsideration of decisions.........................................162 61AZG Corrections of clerical errors or obvious defects ...........163 61AZH Regulations....................................................................163
Division 5B—Disclosure of cross-media relationships 164 61BA Definitions.....................................................................164 61BB Disclosure of cross-media relationship by
commercial television broadcasting licensee.................164 61BC Choice of disclosure method—commercial radio
broadcasting licensee.....................................................166 61BD Disclosure of cross-media relationship by
commercial radio broadcasting licensee—business affairs disclosure method...............................................167
61BE Disclosure of cross-media relationship by commercial radio broadcasting licensee—regular disclosure method..........................................................168
61BF Disclosure of cross-media relationship by publisher of newspaper..................................................169
61BG Exception—political communication ............................171 61BH Matter or material about the business affairs of a
broadcasting licensee or newspaper publisher...............171
Division 5C—Local news and information requirements for regional commercial radio broadcasting licensees 174
Subdivision A—Introduction 174 61CA Definitions.....................................................................174 61CAA This Division does not apply in relation to certain
licences..........................................................................176 61CB Trigger event .................................................................176 61CC What is local? ................................................................179
Subdivision B—Minimum service standards for local news and information 179
61CD Licensee must meet minimum service standards for local news and information......................................179
61CE Minimum service standards for local news and information....................................................................180
Subdivision C—Local content plans 182 61CF Licensee must submit draft local content plan to
the ACMA.....................................................................182 61CG Content of draft or approved local content plan ............183 61CH Approval of draft local content plan..............................183 61CJ Register of approved local content plans.......................184
viii Broadcasting Services Act 1992
61CK Approved local content plan must be varied if minimum service standards are imposed or increased........................................................................185
61CL Approved local content plan may be varied by the licensee..........................................................................185
61CM Approval of draft variation............................................186 61CN ACMA may review approved local content plan ..........187 61CP Compliance with approved local content plan...............187 61CPA Licensee must submit annual compliance report ...........187 61CQ Minister may direct the ACMA about the exercise
of its powers ..................................................................188
Subdivision D—Other local content requirements 188 61CR Minister may direct the ACMA to conduct an
investigation about other local content requirements ..................................................................188
61CS Minister may direct the ACMA to impose licence conditions relating to local content................................188
61CT Regular reviews of local content requirements..............189
Division 6—Notification provisions 191 62 Requirement to notify control and directorships ...........191 63 Requirement to notify changes in control......................192 64 Person who obtains control of a licence or
newspaper must notify the ACMA................................194 65 Requirement to notify control and directorships as
at 1 February 2007.........................................................195 65A Strict liability offences ..................................................197 65B Designated infringement notice provisions ...................197
Division 7—Approval of temporary breaches 198 66 Offence for breaches without approval..........................198 67 Applications for prior approval of temporary
breaches.........................................................................199 68 Extension of time for compliance with notice ...............200 69 Breach of notice under section 67 to constitute an
offence...........................................................................201
Division 8—Action by the ACMA 202 70 Notices by the ACMA...................................................202 71 Extension of time for compliance with notice ...............203 72 Breach of notice under section 70 to constitute an
offence...........................................................................204
Broadcasting Services Act 1992 ix
Division 9—Special provision for small markets 205 73 Additional licence under section 38A not to result
in breach of ownership limits ........................................205 73A Additional licence allocated under section 38B not
to result in breach of control rules .................................205
Division 10—Prior opinions by the ACMA 206 74 Requests to ACMA to give an opinion on whether
a person is in a position to control a licence, a newspaper or a company ...............................................206
Division 11—Miscellaneous 208 75 Register of matters under this Part ................................208 76 Continuing offences ......................................................208 77 Part has effect notwithstanding Competition and
Consumer Act................................................................208 78 Part not to invalidate appointments ...............................209
Part 6—Community broadcasting licences 210 79 Interpretation .................................................................210 79A Application....................................................................210 80 ACMA to advertise for applications for BSB
community broadcasting licences..................................210 81 When licences must not be allocated.............................211 82 Other community broadcasting licences........................211 83 When persons are regarded as suitable..........................211 84 Allocation of community broadcasting licences............212 84A Designated community radio broadcasting licences
to provide analog or digital services..............................213 85 ACMA not required to allocate community
broadcasting licence to any applicant ............................214 85A Services authorised by designated community
radio broadcasting licences............................................215 86 Conditions of community broadcasting licences ...........216 87 ACMA may impose additional conditions on
community broadcasting licences..................................217 87A Additional conditions on CTV licences.........................217 87B Special licence condition relating to digital
community radio broadcasting services.........................220 88 Matters to which conditions may relate.........................220 89 Duration of community broadcasting licences ..............220 90 Applications for renewal of community
broadcasting licences.....................................................220 91 ACMA may renew community broadcasting
licences..........................................................................222
x Broadcasting Services Act 1992
91A Transfer of community broadcasting licences ...............223 92 Surrender of community broadcasting licences.............224
Part 6A—Temporary community broadcasting licences 225 92A Interpretation .................................................................225 92B Temporary community broadcasting licences ...............225 92C Applicants for temporary community broadcasting
licences..........................................................................225 92D When applicants and licensees are regarded as
suitable ..........................................................................226 92E Criteria for deciding whether to allocate a licence ........227 92F Licences to accord with alternative planning
procedures .....................................................................228 92G Licence area, timing conditions and licence period.......228 92H Conditions of temporary community broadcasting
licences..........................................................................228 92J ACMA may vary conditions or periods, or impose
new conditions...............................................................228 92K Duration of temporary community broadcasting
licences..........................................................................230 92L Surrender of temporary community broadcasting
licences..........................................................................230
Part 7—Subscription television broadcasting services 231 Division 1—Allocation of subscription television broadcasting
licences 231 95 When subscription television broadcasting licence
must not be allocated.....................................................231 96 Allocation of other subscription television
broadcasting licences.....................................................231 97 Requests to Australian Competition and Consumer
Commission...................................................................232 98 Suitability for allocation of licence................................233 98D Compensation................................................................234
Division 2—Conditions of subscription television broadcasting licence 235
99 Conditions applicable to subscription television broadcasting licence ......................................................235
100 Matters to which conditions may relate.........................235
Division 2A—Eligible drama expenditure 237 Subdivision A—Introduction 237
103A Simplified outline..........................................................237
Broadcasting Services Act 1992 xi
103B Definitions.....................................................................238 103C Channel providers .........................................................241 103D Part-channel providers...................................................242 103E Pass-through providers ..................................................242 103F Part-pass-through providers...........................................243 103G Supply of channel or package........................................243 103H Non-designated pre-production expenditure not to
be counted unless principal photography has commenced ...................................................................243
103J Cash-based accounting—when expenditure is incurred .........................................................................244
103JA When designated script development expenditure is incurred in relation to an eligible drama program etc. .................................................................................244
103K When expenditure incurred on a new eligible drama program ..............................................................247
103L ACMA may make determinations about what constitutes program expenditure....................................247
103M Expenditure to be nominated only once in meeting licence conditions..........................................................248
Subdivision B—Channel provider supplies channel 250 103N 10% minimum eligible drama expenditure—
channel provider supplies channel.................................250 103NA Carry-forward eligible drama expenditure ....................251 103P Shortfall of eligible drama expenditure—channel
provider supplies channel exclusively to licensee .........252 103Q Shortfall of eligible drama expenditure—channel
provider supplies channel to multiple licensees.............254
Subdivision C—Pass-through provider supplies channel 256 103R 10% minimum eligible drama expenditure—
pass-through provider supplies channel.........................256 103RA Carry-forward eligible drama expenditure ....................258 103S Shortfall of eligible drama expenditure—
pass-through provider supplies channel.........................259
Subdivision D—Licensee supplies all program material 260 103T 10% minimum eligible drama expenditure—
licensee supplies all program material...........................260 103TA Carry-forward eligible drama expenditure ....................262
Subdivision E—Part-channel provider supplies package of programs 262
103U 10% minimum eligible drama expenditure— part-channel provider supplies package of programs........................................................................262
xii Broadcasting Services Act 1992
103UA Carry-forward eligible drama expenditure ....................264 103V Shortfall of eligible drama expenditure—
part-channel provider supplies a package of programs exclusively to licensee...................................265
103W Shortfall of eligible drama expenditure— part-channel provider supplies a package of programs to multiple licensees ......................................266
Subdivision F—Part-pass-through provider supplies package of programs 269
103X 10% minimum eligible drama expenditure— part-pass-through provider supplies package of programs........................................................................269
103XA Carry-forward eligible drama expenditure ....................271 103Y Shortfall of eligible drama expenditure—
part-pass-through provider supplies package of programs........................................................................271
Subdivision G—Licensee supplies part of program material 273 103Z 10% minimum eligible drama expenditure—
licensee supplies part of program material ....................273 103ZAA Carry-forward eligible drama expenditure ....................275
Subdivision H—Annual returns 275 103ZA Licensee to lodge annual return.....................................275 103ZB Channel provider and part-channel provider to
lodge annual return........................................................276 103ZC ACMA may inquire into the correctness of an
annual return..................................................................277 103ZD Nominations to be attached to annual returns................277
Subdivision I—Compliance certificates 278 103ZE ACMA to issue compliance certificate..........................278 103ZF Compliance certificate to be prima facie evidence ........281
Subdivision J—Miscellaneous 281 103ZG Anti-avoidance—transactions between persons not
at arm’s length...............................................................281 103ZH Expenditure to be expressed in Australian
currency.........................................................................282 103ZJ Review before 31 March 2003 ......................................282
Division 6—Miscellaneous 283 113 Transfer of subscription television broadcasting
licence ...........................................................................283 114 Surrender of subscription television broadcasting
licence ...........................................................................283
Broadcasting Services Act 1992 xiii
115 Minister may protect the free availability of certain types of programs ..........................................................283
115A Review of anti-siphoning provisions.............................284 116 Certain arrangements not to result in control or in
persons being associates ................................................285 116A Use of additional capacity .............................................286 116B Application of section 51 of the Competition and
Consumer Act................................................................286
Part 8—Subscription broadcasting and narrowcasting class licences 287
117 Determination of class licences .....................................287 118 Conditions of class licences...........................................287 119 Matters to which conditions may relate.........................287 120 Variation of class licences .............................................288 121 Class licences and variations to be disallowable by
the Parliament................................................................288
Part 8A—Restrictions on subscription television broadcasting services in regional areas etc. 289
121A Simplified outline..........................................................289 121B Definitions.....................................................................289 121C Identical program items.................................................290 121D Continuity of program items .........................................290 121E ACMA permission is required to provide certain
television services in regional areas ..............................291
Part 8B—International broadcasting licences 293 Division 1—Introduction 293
121F Simplified outline..........................................................293 121FAA Definitions.....................................................................294
Division 2—Allocation of international broadcasting licences 295 121FA Application for international broadcasting licence ........295 121FB Corporate status and suitability .....................................295 121FC Unsuitable applicant ......................................................297 121FD Australia’s national interest ...........................................298 121FE Allocation of licence .....................................................300
Division 3—Obligations of international broadcasting licensees 301 121FF Conditions of international broadcasting licences .........301
Division 4—Remedies 302 121FG Prohibition on providing an international
broadcasting service without a licence ..........................302
xiv Broadcasting Services Act 1992
121FH Remedial directions—unlicensed international broadcasting services.....................................................302
121FHA Breach of remedial direction—offence .........................302 121FHB Breach of remedial direction—civil penalty
provision........................................................................303 121FJ Offence for breach of conditions of international
broadcasting licence ......................................................303 121FJA Civil penalty provision relating to breach of
conditions of international broadcasting licences ..........304 121FJB Remedial directions—licence conditions ......................304 121FJC Breach of remedial direction—offence .........................304 121FJD Breach of remedial direction—civil penalty
provision........................................................................305 121FK Cancellation of licence if service does not
commence within 2 years ..............................................305 121FL Formal warning, or cancellation or suspension of
licence, where service is contrary to Australia’s national interest .............................................................306
Division 4A—Nominated broadcaster declarations 308 121FLA Object of this Division ..................................................308 121FLB Applications for nominated broadcaster
declarations ...................................................................308 121FLC Making a nominated broadcaster declaration ................308 121FLD Effect of nominated broadcaster declaration .................310 121FLE Conditions of nominated broadcaster declarations ........311 121FLF Offence for breach of conditions of nominated
broadcaster declaration..................................................311 121FLG Revocation of nominated broadcaster declaration.........312 121FLH Cancellation of licence if declaration ceases to be
in force and licensee is not an Australian company.......313 121FLJ Register of nominated broadcaster declarations ............315
Division 5—ACMA to assist the Minister for Foreign Affairs 316 121FM Report about compliance with international
broadcasting guidelines .................................................316 121FN Records of broadcasts....................................................316
Division 6—Miscellaneous 317 121FP International broadcasting guidelines ............................317 121FQ Surrender of international broadcasting licences...........317 121FR Complaints about international broadcasting
services..........................................................................317 121FS Statements about decisions of the Minister for
Foreign Affairs ..............................................................317
Broadcasting Services Act 1992 xv
Part 9—Content rules, program standards and codes of practice 319
121G Australian content—transmission quota........................319 122 Program standards for children’s programs and
Australian content .........................................................323 123 Development of codes of practice .................................325 123A Review by the ACMA...................................................330 123B Review by the ACMA—application of code of
practice to section 38C licences.....................................330 124 ACMA to maintain Register of codes of practice..........331 125 ACMA may determine program standards where
codes of practice fail or where no code of practice developed ......................................................................331
126 Consultation on standards..............................................332 127 Notification of determination or variation or
revocation of standards..................................................332 128 Standards and codes to be amendable by the
Parliament .....................................................................332 129 Limitation of ACMA’s power in relation to
standards........................................................................333 130 Application of the Competition and Consumer Act ......333
Part 9A—Technical standards 334 130A Technical standards for digital transmission—
television etc..................................................................334 130AA Technical standards for digital transmission—
radio etc.........................................................................336 130AB Technical standards relating to the operation of
multiplex transmitters....................................................337 130AC Technical standards for digital transmission of
television services provided with the use of a satellite ..........................................................................337
130B Technical standards for domestic digital reception equipment—television etc. ............................................338
130BA Technical standards for domestic digital reception equipment—radio etc. ...................................................340
130BB Technical standards for domestic digital reception equipment—television services provided with the use of a satellite .............................................................343
Part 9B—Industry codes and industry standards 347 Division 1—Simplified outline 347
130C Simplified outline..........................................................347
xvi Broadcasting Services Act 1992
Division 2—Interpretation 348 130D Industry codes ...............................................................348 130E Industry standards .........................................................348 130F Industry activities ..........................................................348 130G Sections of the industry .................................................350 130H Participants in a section of the industry.........................350
Division 3—General principles relating to industry codes and industry standards 351
130J Statement of regulatory policy ......................................351 130K Examples of matters that may be dealt with by
industry codes and industry standards ...........................351 130L Industry codes and industry standards not to deal
with certain matters .......................................................352
Division 4—Industry codes 353 130M Registration of industry codes .......................................353 130N ACMA may request codes.............................................354 130P Publication of notice where no body or association
represents a section of the industry................................355 130Q Replacement of industry codes......................................355
Division 5—Industry standards 357 130R ACMA may determine an industry standard if a
request for an industry code is not complied with .........357 130S ACMA may determine industry standard where no
industry body or association formed..............................358 130T ACMA may determine industry standards—total
failure of industry codes ................................................358 130U ACMA may determine industry standards—partial
failure of industry codes ................................................360 130V Compliance with industry standards..............................361 130W Formal warnings—breach of industry standards ...........362 130X Variation of industry standards......................................362 130Y Revocation of industry standards ..................................362 130Z Public consultation on industry standards .....................363
Division 6—Register of industry codes and industry standards 364 130ZA ACMA to maintain Register of industry codes and
industry standards..........................................................364
Part 9C—Access to commercial television broadcasting services provided with the use of a satellite 365
130ZBA Simplified outline..........................................................365
Broadcasting Services Act 1992 xvii
130ZB Objectives of conditional access scheme—South Eastern Australia TV3 licence area and Northern Australia TV3 licence area ............................................365
130ZBB Objectives of conditional access scheme— Western Australia TV3 licence area ..............................371
130ZBC Publishing details of open access areas on the ACMA’s website...........................................................378
130ZC Registration of conditional access scheme developed by representative body or association...........378
130ZCAA ACMA may invite representative body or association to develop a revised conditional access scheme...........................................................................379
130ZCAB ACMA may request development of replacement conditional access scheme.............................................381
130ZCA Registration of conditional access scheme formulated by the ACMA..............................................382
130ZD Replacement of conditional access scheme ...................384 130ZE ACMA to maintain register of conditional access
schemes .........................................................................385 130ZEA ACMA to maintain register of designated digital
service days ...................................................................385 130ZF ACMA may direct a scheme administrator to issue
a reception certificate etc...............................................386 130ZFA Adequate reception........................................................389 130ZG Applicable terrestrial digital commercial television
broadcasting services.....................................................389 130ZH Declared service-deficient areas ....................................391
Part 9D—Captioning 394 Division 1—Introduction 394
130ZJ Simplified outline..........................................................394 130ZK Definitions.....................................................................394 130ZL Designated viewing hours .............................................398 130ZM This Part does not apply to foreign language
programs........................................................................398 130ZN This Part does not apply to programs that consist
wholly of music.............................................................398 130ZO Captioning service provided for part of program ..........399 130ZP Multiple subscription television services provided
by licensee.....................................................................399 130ZQ Television service provided in a period.........................399
xviii Broadcasting Services Act 1992
Division 2—Captioning obligations of commercial television broadcasting licensees and national broadcasters 401
130ZR Captioning obligations—basic rule ...............................401 130ZS Captioning obligations—special rules for
multi-channelled services ..............................................404 130ZT Annual captioning targets for 2012-13 and
2013-14—commercial television broadcasting licensees ........................................................................406
130ZU Annual captioning targets for 2012-13 and 2013-14—national broadcasters ....................................408
130ZUA Exemption orders and target reduction orders— unjustifiable hardship ....................................................412
130ZUAA Effect of target reduction order .....................................416 130ZUB Certain breaches to be disregarded................................419
Division 3—Captioning obligations of subscription television licensees 420
130ZV Annual captioning targets—subscription television licensees ........................................................................420
130ZVA Categories for subscription television movie services..........................................................................423
130ZW Categories for subscription television general entertainment services ...................................................424
130ZX Exemptions—certain subscription television services provided before 1 July 2022 ............................426
130ZY Exemption orders and target reduction orders— unjustifiable hardship ....................................................431
130ZYA Effect of target reduction order .....................................435 130ZZ Captioning services for repeats of television
programs........................................................................436 130ZZAA Captioning services for simultaneously transmitted
television programs .......................................................436 130ZZAB Certain breaches to be disregarded................................437
Division 4—Captioning standards 438 130ZZA Captioning standards .....................................................438
Division 5—Emergency warnings 440 130ZZB Emergency warnings .....................................................440
Division 6—Reports and record-keeping 442 130ZZC Annual compliance reports............................................442 130ZZD Record-keeping .............................................................443
Division 7—Review of this Part etc. 445 130ZZE Review of this Part etc...................................................445
Broadcasting Services Act 1992 xix
Part 10—Remedies for breaches of licensing provisions 446 Division 1—Offences for providing unlicensed services 446
131 Prohibition on providing a commercial television broadcasting service without a licence ..........................446
132 Prohibition on providing a subscription television broadcasting service without a licence ..........................446
133 Prohibition on providing a commercial radio broadcasting service without a licence ..........................446
134 Prohibition on providing a community television broadcasting service without a licence ..........................446
135 Prohibition on providing a community radio broadcasting service without a licence ..........................447
136 Continuing offences ......................................................447
Division 1A—Civil penalty provisions relating to unlicensed services 448
136A Prohibition on providing a commercial television broadcasting service without a licence ..........................448
136B Prohibition on providing a subscription television broadcasting service without a licence ..........................448
136C Prohibition on providing a commercial radio broadcasting service without a licence ..........................448
136D Prohibition on providing a community television broadcasting service without a licence ..........................448
136E Prohibition on providing a community radio broadcasting service without a licence ..........................449
136F Continuing breaches ......................................................449
Division 2—Action by ACMA where a person provides a service without a licence 450
137 Remedial directions—unlicensed services ....................450 138 Breach of remedial direction—offences ........................450 138A Breach of remedial direction—civil penalty
provision........................................................................451
Division 3—Action in relation to breaches by licensees 452 139 Offence for breach of conditions of licences and
class licences .................................................................452 140 Continuing offences ......................................................454 140A Civil penalty provisions relating to breach of
conditions of licences and class licences .......................454 141 Remedial directions—licence conditions, class
licences and codes of practice .......................................455 142 Breach of remedial direction—offences ........................457
xx Broadcasting Services Act 1992
142A Breach of remedial direction—civil penalty provision........................................................................459
143 Suspension and cancellation..........................................459
Division 4—Action in relation to class licences 461 144 Application to Federal Court .........................................461
Part 10A—Anti-hoarding rules 462 Division 1—Introduction 462
146A Simplified outline..........................................................462 146B Definitions.....................................................................463 146C Designated events and designated series of events........464 146CA When event or series is eligible for delayed
televising in the Central-Western time zones ................465 146D Program suppliers..........................................................466
Division 2—Commercial television broadcasting licensees 468 146E Anti-hoarding rule—licensees.......................................468 146F Anti-hoarding rule—program suppliers ........................469 146G What constitutes an offer to transfer rights to
televise live events ........................................................470 146H Offers to transfer rights to televise live events ..............471 146J Contracts to acquire rights to televise live events
must authorise the transfer of the rights ........................472 146K Simultaneous events in a series .....................................473 146KA Delayed televising in the Central-Western time
zones..............................................................................474
Division 3—National broadcasters 477 146L Anti-hoarding rule .........................................................477 146M What constitutes an offer to transfer rights to
televise live events ........................................................478 146N Offers to transfer rights to televise live events ..............478 146P Contracts to acquire rights to televise live events
must authorise the transfer of the rights ........................479 146Q Simultaneous events in a series .....................................479 146R Delayed televising in the Central-Western time
zones..............................................................................480
Division 4—Review of anti-hoarding provisions 483 146S Review of anti-hoarding provisions ..............................483
Broadcasting Services Act 1992 xxi
Part 11—Complaints to the ACMA 484 Division 1—Complaints relating to action under licences and
class licences 484 147 Complaints relating to offences or breach of
licence conditions..........................................................484 148 Complaints under codes of practice...............................484 149 Investigation of complaints by the ACMA....................485
Division 2—Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS 486
150 Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS ..................................................................486
151 Investigation of complaints relating to the ABC or SBS by the ACMA........................................................487
152 Action by ACMA where complaint justified.................487 153 ACMA may report to Minister on results of
recommendation ............................................................487
Part 13—Information gathering by the ACMA 489 Division 1—Introduction 489
168 Obtaining of information by the ACMA .......................489 169 Decision-making by the ACMA not limited to
matters discovered by investigation or hearing .............489
Division 2—Investigations 490 170 Investigations by the ACMA.........................................490 171 Minister may direct ACMA to conduct an
investigation ..................................................................490 172 ACMA may call for written submissions from the
public.............................................................................490 173 Notice requiring appearance for examination................491 174 Examination on oath or affirmation...............................491 175 Examination to take place in private .............................491 176 Record to be made of examination ................................491 177 Production of documents for inspection ........................492 178 Report on investigation .................................................492 179 Publication of report......................................................492 180 Person adversely affected by report to be given
opportunity to comment ................................................493
Division 3—Hearings 494 182 Power to hold hearings ..................................................494
xxii Broadcasting Services Act 1992
183 Minister may direct ACMA to hold a hearing...............494 184 Procedure for conduct of hearings.................................494 185 ACMA may direct holding of conference .....................494 186 Hearings to be informal, quick and economical ............495 187 Hearings to be in public except in exceptional
cases ..............................................................................495 188 Public notice of hearings ...............................................495 189 Confidential material not to be published......................495 190 Directions as to private hearings ...................................496 191 Constitution of ACMA for conduct of hearings ............496 192 Presiding member..........................................................496 193 Reconstitution of hearing panel.....................................496 194 Exercise of powers in relation to conduct of
hearing...........................................................................497 195 Summons to give evidence or produce documents........497 196 Written submissions may be made to hearing ...............497 197 Evidence and submissions to be taken into account
by ACMA......................................................................497 198 Representation at hearings.............................................498 199 Reports on hearings .......................................................498
Division 4—General 499 200 Protection of members and persons giving
evidence ........................................................................499 201 Protection of panel conducting hearing .........................499 202 Non-compliance with requirement to give
evidence ........................................................................499 203 Proceedings for defamation not to lie............................501
Part 14—Appeals to the Administrative Appeals Tribunal 502 204 Appeals to the Administrative Appeals Tribunal...........502 205 Notification of decisions to include notification of
reasons and appeal rights...............................................509
Part 14A—Accounts and payment of licence fees 510 205A Definitions.....................................................................510 205B Broadcasting licensees to keep accounts .......................510 205BA Datacasting transmitter licensees to keep accounts .......512 205C Payment of licence fees .................................................513 205D Penalty for unpaid licence fees......................................513
Broadcasting Services Act 1992 xxiii
Part 14B—Civil penalties 518 Division 1—Ancillary contravention of civil penalty provision 518
205E Ancillary contravention of civil penalty provision ........518
Division 2—Civil penalty orders 519 205EA Simplified outline..........................................................519 205F Civil penalty orders .......................................................519 205G Who may apply for a civil penalty order .......................520 205H 2 or more proceedings may be heard together...............521 205J Time limit for application for an order ..........................521 205K Civil evidence and procedure rules for civil
penalty orders ................................................................521 205L Civil proceedings after criminal proceedings ................521 205M Criminal proceedings during civil proceedings .............521 205N Criminal proceedings after civil proceedings ................522 205P Evidence given in proceedings for a civil penalty
order not admissible in criminal proceedings ................522 205PAA Mistake of fact...............................................................522
Part 14C—Injunctions 524 205PA Simplified outline..........................................................524 205Q Injunctions.....................................................................524 205R Interim injunctions ........................................................524 205S Discharge etc. of injunctions .........................................525 205T Certain limits on granting injunctions not to apply .......525 205U Other powers of the Federal Court unaffected...............525
Part 14D—Enforceable undertakings 526 205V Simplified outline..........................................................526 205W Acceptance of undertakings ..........................................526 205X Enforcement of undertakings ........................................527
Part 14E—Infringement notices 528 205XAA Simplified outline..........................................................528 205XA Formal warning .............................................................528 205Y When an infringement notice can be given ...................528 205Z Matters to be included in an infringement notice ..........529 205ZA Amount of penalty.........................................................529 205ZB Withdrawal of an infringement notice...........................530 205ZC What happens if the penalty is paid...............................530 205ZD Effect of this Part on criminal proceedings ...................530 205ZE Appointment of authorised infringement notice
officer ............................................................................531
xxiv Broadcasting Services Act 1992
205ZF Regulations....................................................................531
Part 15—Miscellaneous 532 206 Broadcasting or datacasting taken to be
publication in permanent form ......................................532 207 Amounts of fees ............................................................532 209 Prosecutions ..................................................................532 210 Publication of opinions..................................................532 211 Service of notices ..........................................................533 211AA Time when a television program is broadcast—
certain terrestrial licence areas ......................................533 211A Time when a television program is broadcast—
South Eastern Australia TV3 and Northern Australia TV3 licence areas...........................................534
212 Special provisions for re-transmission of programs ......536 212A Self-help providers ........................................................538 212B Declared self-help providers and excluded
providers........................................................................540 213 Penalties for continuing offences ..................................541 214 Procedure relating to continuing offences .....................541 215 Guidelines relating to ACMA’s enforcement
powers etc......................................................................541 215B Review—development and regulation of digital
radio broadcasting services and restricted datacasting services .......................................................543
216 Ministerial consultative and advisory bodies.................543 216A Schedule 4 (digital television broadcasting)..................543 216B Schedule 5 (online services) ..........................................544 216C Schedule 6 (datacasting services) ..................................544 216D Schedule 7 (content services) ........................................544 217 Regulations....................................................................544 218 Channel sharing.............................................................544
Schedule 1—Control and ownership of company interests 546
Part 1—Introduction 546 1 Control—general ...........................................................546
Part 2—When person is in a position to exercise control 548 2 When person is in a position to exercise control ...........548 3 When person is in a position to exercise control of
a newspaper ...................................................................551 4 Special provisions for authorised lenders ......................552
Broadcasting Services Act 1992 xxv
Part 3—Deemed control 556 5 Explanation of examples ...............................................556 6 The 15% rule .................................................................556 7 Application of method through chain of companies......556
Part 4—Tracing of ownership 557 8 Tracing of ownership.....................................................557
Schedule 2—Standard conditions 559 Part 1—Interpretation 559
1 Definitions.....................................................................559 2 Interpretation—certain things do not amount to
broadcasting of advertisements .....................................562
Part 2—Special conditions 563 3 Broadcasting of political or controversial material........563 3A Broadcasting of election advertisements .......................563 4 Identification of certain political matter ........................564 5 Records of matter broadcast ..........................................565 6 Advertisements relating to medicines............................566
Part 3—Commercial television broadcasting licences 567 Division 1—General 567
7 Conditions of commercial television broadcasting licences..........................................................................567
Division 2—Licences allocated under section 38C 574 7A Common conditions ......................................................574 7B Conditions about the provision of core/primary
commercial television broadcasting services.................574 7C Conditions about the provision of
non-core/primary commercial television broadcasting services.....................................................577
7D Condition about the provision of local news services..........................................................................581
7E Exemption—provision of new commercial television broadcasting services not technically feasible ..........................................................................582
7F Exemption—commercial television broadcasting services with the same program content ........................583
7G Delay in commencement of new commercial television broadcasting services ....................................584
7H Start dates for licence areas ...........................................585
xxvi Broadcasting Services Act 1992
7J Program content ............................................................586 7K SDTV multi-channelled commercial television
broadcasting service ......................................................587 7L Definitions.....................................................................587
Part 4—Commercial radio broadcasting licences 589 8 Standard conditions of commercial radio
broadcasting licences.....................................................589
Part 5—Community broadcasting licences 593 9 Conditions applicable to services provided under
community broadcasting licences..................................593
Part 6—Subscription television broadcasting licences 597 10 Conditions applicable to subscription television
broadcasting licences.....................................................597
Part 7—Services provided under class licences 600 11 Conditions applicable to broadcasting services
provided under class licences ........................................600
Preliminary Part 1
Section 1
Broadcasting Services Act 1992 1
An Act relating to broadcasting services, datacasting services, online services and content services, and for related purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Broadcasting Services Act 1992.
2 Commencement
(1) Section 1, this section, sections 3 and 6 commence on the day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act commence on a day to be fixed by Proclamation.
(3) If those provisions do not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, those provisions commence on the first day after the end of that period.
3 Objects of this Act
(1) The objects of this Act are: (a) to promote the availability to audiences throughout Australia
of a diverse range of radio and television services offering entertainment, education and information; and
(aa) to promote the availability to audiences and users throughout Australia of a diverse range of datacasting services; and
(b) to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs; and
Part 1 Preliminary
Section 3
2 Broadcasting Services Act 1992
(ba) to provide a regulatory environment that will facilitate the development of a datacasting industry in Australia that is efficient, competitive and responsive to audience and user needs; and
(c) to encourage diversity in control of the more influential broadcasting services; and
(e) to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity; and
(ea) to promote the availability to audiences throughout Australia of television and radio programs about matters of local significance; and
(f) to promote the provision of high quality and innovative programming by providers of broadcasting services; and
(fa) to promote the provision of high quality and innovative content by providers of datacasting services; and
(g) to encourage providers of commercial and community broadcasting services to be responsive to the need for a fair and accurate coverage of matters of public interest and for an appropriate coverage of matters of local significance; and
(h) to encourage providers of broadcasting services to respect community standards in the provision of program material; and
(ha) to ensure designated content/hosting service providers respect community standards in relation to content; and
(i) to encourage the provision of means for addressing complaints about broadcasting services; and
(j) to ensure that providers of broadcasting services place a high priority on the protection of children from exposure to program material which may be harmful to them; and
(ja) to ensure that international broadcasting services are not provided contrary to Australia’s national interest; and
(k) to provide a means for addressing complaints about certain internet content; and
(l) to restrict access to certain internet content that is likely to cause offence to a reasonable adult; and
(m) to protect children from exposure to internet content that is unsuitable for children; and
Preliminary Part 1
Section 4
Broadcasting Services Act 1992 3
(n) to ensure the maintenance and, where possible, the development of diversity, including public, community and indigenous broadcasting, in the Australian broadcasting system in the transition to digital broadcasting.
(2) In this section:
designated content/hosting service provider has the same meaning as in Schedule 7.
internet content has the same meaning as in Schedule 5.
4 Regulatory policy
(1) The Parliament intends that different levels of regulatory control be applied across the range of broadcasting services, datacasting services and internet services according to the degree of influence that different types of broadcasting services, datacasting services and internet services are able to exert in shaping community views in Australia.
(2) The Parliament also intends that broadcasting services and datacasting services in Australia be regulated in a manner that, in the opinion of the ACMA:
(a) enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services and datacasting services; and
(b) will readily accommodate technological change; and (c) encourages:
(i) the development of broadcasting technologies and datacasting technologies, and their application; and
(ii) the provision of services made practicable by those technologies to the Australian community.
(3) The Parliament also intends that internet carriage services supplied to end-users in Australia, be regulated in a manner that:
(a) enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on internet service providers; and
Part 1 Preliminary
Section 4
4 Broadcasting Services Act 1992
(b) will readily accommodate technological change; and (c) encourages:
(i) the development of internet technologies and their application; and
(ii) the provision of services made practicable by those technologies to the Australian community; and
(iii) the supply of internet carriage services at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community.
(3AA) The Parliament also intends that designated content/hosting services be regulated in a manner that:
(a) enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on the providers of those services; and
(b) will readily accommodate technological change; and (c) encourages:
(i) the development of communications technologies and their application; and
(ii) the provision of services made practicable by those technologies to the Australian community.
(3A) This section does not apply to Part 8B (which deals with international broadcasting services).
(4) In this section:
designated content/hosting service has the same meaning as in Schedule 7.
internet carriage service has the same meaning as in Schedule 5.
internet content has the same meaning as in Schedule 5.
internet service provider has the same meaning as in Schedule 5.
Preliminary Part 1
Section 5
Broadcasting Services Act 1992 5
5 Role of the ACMA
(1) In order to achieve the objects of this Act in a way that is consistent with the regulatory policy referred to in section 4, the Parliament:
(a) charges the ACMA with responsibility for monitoring the broadcasting industry, the datacasting industry, the internet industry and the commercial content service industry; and
(b) confers on the ACMA a range of functions and powers that are to be used in a manner that, in the opinion of the ACMA, will:
(i) produce regulatory arrangements that are stable and predictable; and
(ii) deal effectively with breaches of the rules established by this Act.
(2) Where it is necessary for the ACMA to use any of the powers conferred on it by this Act to deal with a breach of this Act or the regulations, the Parliament intends that the ACMA use its powers, or a combination of its powers, in a manner that, in the opinion of the ACMA, is commensurate with the seriousness of the breach concerned.
(3) This section does not, by implication, limit the functions and powers of:
(b) the Australian Competition and Consumer Commission; or (c) any other body or person who has regulatory responsibilities
in relation to the internet industry.
(4) In this section:
commercial content service has the same meaning as in Schedule 7.
6 Interpretation
(1) In this Act, unless the contrary intention appears:
ACMA means the Australian Communications and Media Authority.
Part 1 Preliminary
Section 6
6 Broadcasting Services Act 1992
ACNC type of entity means an entity that meets the description of a type of entity in column 1 of the table in subsection 25-5(5) of the Australian Charities and Not-for-profits Commission Act 2012.
amount paid on shares, in relation to a company, includes an amount treated by the company as having been so paid.
analog commercial radio broadcasting service means a commercial radio broadcasting service that is transmitted using an analog modulation technique.
analog community radio broadcasting service means a community radio broadcasting service that is transmitted using an analog modulation technique.
anti-siphoning event means an event, or an event of a kind, that is specified in a notice under subsection 115(1). For this purpose, disregard subsections 115(1AA) and (1B).
associate, in relation to a person in relation to control of a licence or a newspaper, or control of a company in relation to a licence or a newspaper, means:
(a) the person’s spouse or a parent, child, brother or sister of the person; or
(b) a partner of the person or, if a partner of the person is a natural person, a spouse or a child of a partner of the person; or
(c) if the person or another person who is an associate of the person under another paragraph receives benefits or is capable of benefiting under a trust—the trustee of the trust; or
(d) a person (whether a company or not) who: (i) acts, or is accustomed to act; or
(ii) under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;
in accordance with the directions, instructions or wishes of, or in concert with, the first-mentioned person or of the first-mentioned person and another person who is an
Preliminary Part 1
Section 6
Broadcasting Services Act 1992 7
associate of the first-mentioned person under another paragraph; or
(e) if the person is a company—another company if: (i) the other company is a related body corporate of the
person for the purposes of the Corporations Act 1990; or
(ii) the person, or the person and another person who is an associate of the person under another paragraph, are in a position to exercise control of the other company;
but persons are not associates if the ACMA is satisfied that they do not act together in any relevant dealings relating to that company, licence or newspaper, and neither of them is in a position to exert influence over the business dealings of the other in relation to that company, licence or newspaper. Note 1: Licence is given an extended meaning by this subsection.
Note 2: See also subsection (3).
associate member means an associate member of the ACMA.
authorised infringement notice officer means: (a) the Chair of the ACMA; or (b) a member of the staff of the ACMA appointed under
section 205ZE.
broadcasting service means a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:
(a) a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or
(b) a service that makes programs available on demand on a point-to-point basis, including a dial-up service; or
(c) a service, or a class of services, that the Minister determines, by notice in the Gazette, not to fall within this definition.
broadcasting services bands means:
Part 1 Preliminary
Section 6
8 Broadcasting Services Act 1992
(a) that part of the radiofrequency spectrum that is designated under subsection 31(1) of the Radiocommunications Act 1992 as being primarily for broadcasting purposes; and
(b) that part of the radiofrequency spectrum that is designated under subsection 31(1A) of the Radiocommunications Act 1992 as being partly for the purpose of digital radio broadcasting services and restricted datacasting services.
broadcasting services bands licence means a commercial television broadcasting licence, a commercial radio broadcasting licence or a community broadcasting licence that uses the broadcasting services bands as a means of delivering broadcasting services.
census count means a census count of the Australian population published by the Australian Statistician.
CER Trade in Services Protocol: (a) means the Protocol on Trade in Services to the Australia New
Zealand Closer Economic Relations Trade Agreement (being that Protocol as in force from time to time); and
(b) includes an instrument under that Protocol (being that instrument as in force from time to time).
Chair means the Chair of the ACMA.
channel B datacasting transmitter licence has the same meaning as in the Radiocommunications Act 1992, and includes an authorisation under section 114 of that Act by the licensee of such a licence.
child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.
civil penalty order means an order under subsection 205F(1).
civil penalty provision means a provision declared by this Act to be a civil penalty provision.
class licence means a class licence determined by the ACMA under section 117.
Preliminary Part 1
Section 6
Broadcasting Services Act 1992 9
commercial broadcasting service has the meaning given by section 14.
commercial radio broadcasting licence means a licence under Part 4 to provide:
(a) in the case of a licence allocated under subsection 40(1)—a commercial radio broadcasting service; or
(b) in any other case—the commercial radio broadcasting service or services that, under section 41D, are authorised by the licence.
commercial radio broadcasting service means a commercial broadcasting service that provides radio programs.
commercial television broadcasting licence means a licence under Part 4 to provide: (aa) in the case of a licence allocated under section 38C—the
commercial television broadcasting services that, under section 41CA, are authorised by the licence; or
(a) in the case of a licence allocated under subsection 40(1)—a commercial television broadcasting service; or
(b) in any other case—the commercial television broadcasting services that, under section 41B or 41C, are authorised by the licence.
commercial television broadcasting service means a commercial broadcasting service that provides television programs.
community broadcasting licence means: (a) a community radio broadcasting licence; or (b) a community television broadcasting licence.
community broadcasting service has the meaning given by section 15.
community radio broadcasting licence means: (a) a licence under Part 6 to provide:
(i) in the case of a licence allocated under subsection 82(1)—a community radio broadcasting service; or
Part 1 Preliminary
Section 6
10 Broadcasting Services Act 1992
(ii) in the case of a designated community radio broadcasting licence—the community radio broadcasting service or services that, under section 85A, are authorised by the licence; or
(iii) in any other case—a community radio broadcasting service; or
(b) a licence under Part 6A to provide a community radio broadcasting service.
community radio broadcasting service means a community broadcasting service that provides radio programs.
community television broadcasting licence means a licence under Part 6 or 6A to provide a community broadcasting service that provides television programs.
company interests, in relation to a person who has a shareholding interest, a voting interest, a dividend interest or a winding-up interest in a company, means the percentage of that interest or, if the person has 2 or more of those interests, whichever of those interests has the greater or greatest percentage.
conditional access scheme means a scheme that sets out rules relating to access to services provided under a commercial television broadcasting licence allocated under section 38C.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
core commercial television broadcasting service, in relation to a commercial television broadcasting licence, has the meaning given by whichever of paragraph 41A(1)(b) or (2)(a) is applicable. Note: There is no core commercial television broadcasting service in
relation to a licence allocated on or after 1 January 2009. This is because core commercial television broadcasting services are certain services authorised by licences allocated before 1 January 2009.
Preliminary Part 1
Section 6
Broadcasting Services Act 1992 11
core/primary commercial television broadcasting service, in relation to a commercial television broadcasting licence, means:
(a) if a core commercial television broadcasting service is provided under the licence—that service; or
(b) if a primary commercial television broadcasting service (within the meaning of Schedule 4) is provided under the licence—that service.
CTV licence means a community broadcasting licence under Part 6 to provide a service that provides television programs but is not targeted, to a significant extent, to one or more remote Indigenous communities.
datacasting licence means a licence under Schedule 6 to provide a datacasting service.
datacasting service means a service that delivers content: (a) whether in the form of text; or (b) whether in the form of data; or (c) whether in the form of speech, music or other sounds; or (d) whether in the form of visual images (animated or
otherwise); or (e) whether in any other form; or (f) whether in any combination of forms;
to persons having equipment appropriate for receiving that content, where the delivery of the service uses the broadcasting services bands.
datacasting transmitter licence has the same meaning as in the Radiocommunications Act 1992, and includes an authorisation under section 114 of that Act by the licensee of such a licence.
de facto partner of a person has the meaning given by the Acts Interpretation Act 1901.
designated community radio broadcasting licence has the meaning given by section 8AA.
Part 1 Preliminary
Section 6
12 Broadcasting Services Act 1992
designated infringement notice provision means a provision declared by this Act to be a designated infringement notice provision.
designated re-stack day has the meaning given by subsection 26(1K).
digital commercial radio broadcasting service means a commercial radio broadcasting service that is transmitted using a digital modulation technique.
digital community radio broadcasting service means a community radio broadcasting service that is transmitted using a digital modulation technique.
digital national radio broadcasting service means a national radio broadcasting service that is transmitted using a digital modulation technique.
digital program enhancement content, in relation to a radio program, means content:
(a) in the form of text; or (b) in the form of still visual images; or (c) if a form is specified in a legislative instrument made by the
Minister—in that form; or (d) in any combination of the above forms;
where: (e) the content is transmitted using a digital modulation
technique; and (f) both the content and the radio program are intended to be
received by the same reception equipment; and (g) if:
(i) the reception equipment is capable of receiving both the content and the radio program; and
(ii) the reception equipment is set to receive the radio program;
the reception equipment will also receive the content.
digital radio moratorium period for a licence area has the meaning given by subsection 35C(3).
Preliminary Part 1
Section 6
Broadcasting Services Act 1992 13
digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.
digital radio start-up day for a licence area has the meaning given by section 8AC.
domestic digital television receiver has the same meaning as in the Radiocommunications Act 1992.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Federal Circuit Court means the Federal Circuit Court of Australia.
Federal Court means the Federal Court of Australia.
final digital television switch-over day has the meaning given by section 8AE.
foundation digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.
infringement notice means an infringement notice under section 205Y.
international broadcasting guidelines means guidelines in force under section 121FP.
international broadcasting licence means a licence to provide an international broadcasting service.
international broadcasting service has the meaning given by section 18A.
legislature of a Territory means: (a) the Legislative Assembly for the Australian Capital
Territory; or (b) the Legislative Assembly of the Northern Territory; or (c) such other Territory legislative bodies as are prescribed.
licence means:
Part 1 Preliminary
Section 6
14 Broadcasting Services Act 1992
(a) in the definition of associate, section 7, Part 5 and Schedule 1:
(i) a licence allocated by the ACMA under this Act (other than a class licence); or
(ii) a datacasting transmitter licence; and (b) in any other provision of this Act—a licence allocated by the
ACMA under this Act (other than a class licence).
licence area means: (a) an area designated by the ACMA under section 29, 40 or
92G; or (b) an area specified in column 1 of the table in
subsection 38C(1). Note 1: See also section 8AD, which deals with deemed radio broadcasting
licence areas.
Note 2: See also section 8 of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992, which deals with deemed licence areas.
licence area plan means a licence area plan prepared under subsection 26(1) or (1B).
licence area population, in relation to a licence area, means the population of the licence area determined under section 30.
line has the same meaning as in the Telecommunications Act 1997.
MDS system means a system for transmitting radiocommunications on a frequency or frequencies within:
(a) the frequency band from 2076 Megahertz up to and including 2111 Megahertz; or
(b) the frequency band from 2300 Megahertz up to and including 2400 Megahertz.
member means a member of the ACMA.
Minister for Foreign Affairs means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
multiplex capacity has the same meaning as in Division 4B of Part 3.3 of the Radiocommunications Act 1992.
Preliminary Part 1
Section 6
Broadcasting Services Act 1992 15
national broadcaster means the provider of a national broadcasting service referred to in paragraph 13(1)(a) or (b).
national broadcasting service has the meaning given by section 13.
national radio broadcasting service means a national broadcasting service that provides radio programs.
near relative, in relation to a person, means: (a) a parent, step-parent, child, stepchild, grandparent,
grandchild, brother or sister of the person; or (b) the spouse of the first-mentioned person.
newspaper means a newspaper that is in the English language and is published on at least 4 days in each week, but does not include a publication if less than 50% of its circulation is by way of sale.
offence against this Act includes an offence against section 136.1 or 137.1 of the Criminal Code that relates to this Act.
open narrowcasting radio service means an open narrowcasting service that provides radio programs.
open narrowcasting service has the meaning given by section 18.
open narrowcasting television service means an open narrowcasting service that provides television programs.
overlap area, in relation to a licence area part of which is within another licence area, means the area of overlap between the 2 licence areas.
parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.
Parliament means: (a) the Parliament of the Commonwealth; or (b) a State Parliament; or (c) the legislature of a Territory.
Part 1 Preliminary
Section 6
16 Broadcasting Services Act 1992
penalty unit has the meaning given by section 4AA of the Crimes Act 1914.
political party means an organisation whose objects or activities include the promotion of the election of candidates endorsed by it to a Parliament.
population of Australia means the Australian population determined by the ACMA under section 30.
program, in relation to a broadcasting service, means: (a) matter the primary purpose of which is to entertain, to
educate or to inform an audience; or (b) advertising or sponsorship matter, whether or not of a
commercial kind.
program standards means standards determined by the ACMA relating to the content or delivery of programs.
radio program has a meaning affected by section 8AB.
reception certificate means a reception certificate issued under a conditional access scheme registered under Part 9C.
regional racing service radio licence has the meaning given by section 8AF.
registered code of practice means a code of practice registered under:
(a) section 123; or (b) clause 62 of Schedule 5; or (c) clause 28 of Schedule 6; or (d) clause 85 of Schedule 7.
remote area service radio licence means a regional commercial radio broadcasting licence (within the meaning of Division 5C of Part 5) the licence area of which is:
(a) Remote Commercial Radio Service Central Zone RA1; or (b) Remote Commercial Radio Service North East Zone RA1; or (c) Remote Commercial Radio Service Western Zone RA1.
Preliminary Part 1
Section 6
Broadcasting Services Act 1992 17
remote Indigenous community has the meaning given by section 8B.
restricted datacasting licence means a datacasting licence allocated as a result of an application for a restricted datacasting licence.
restricted datacasting service means a datacasting service provided under, and in accordance with the conditions of, a restricted datacasting licence.
satellite subscription television broadcasting licence means a licence under Part 7 to provide a subscription television broadcasting service with the use of a subscription television satellite.
scheme administrator: (a) in relation to a conditional access scheme for the South
Eastern Australia TV3 licence area or the Northern Australia TV3 licence area—has the meaning given by subsection 130ZB(8); or
(b) in relation to a conditional access scheme for the Western Australia TV3 licence area—has the meaning given by subsection 130ZBB(9).
shares, in relation to a company, means shares in, or stock forming part of, the capital of the company.
spouse of a person includes a de facto partner of the person.
stepchild: without limiting who is a stepchild of a person for the purposes of this Act, someone who is a child of a de facto partner of the person is the stepchild of the person if he or she would be the person’s stepchild except that the person is not legally married to the partner.
step-parent: without limiting who is a step-parent of a person for the purposes of this Act, someone who is a de facto partner of a parent of the person is the step-parent of the person if he or she would be the person’s step-parent except that he or she is not legally married to the person’s parent.
Part 1 Preliminary
Section 6
18 Broadcasting Services Act 1992
subscription broadcasting service has the meaning given by section 16.
subscription fee includes any form of consideration.
subscription narrowcasting service has the meaning given by section 17.
subscription radio broadcasting service means a subscription broadcasting service that provides radio programs.
subscription radio narrowcasting service means a subscription narrowcasting service that provides radio programs.
subscription television broadcasting licence means a licence under Part 7 to provide one or more subscription television broadcasting services.
subscription television broadcasting service means a subscription broadcasting service that provides television programs.
subscription television narrowcasting service means a subscription narrowcasting service that provides television programs.
subscription television satellite means a satellite that was, at any time before 1 July 1997, operated under the general telecommunications licence that was granted to AUSSAT Pty Ltd and notified on 26 November 1991 in Gazette No. S323.
telecommunications carrier means a carrier (within the meaning of the Telecommunications Act 1997).
television licence area plan means a licence area plan prepared under subsection 26(1B).
temporary community broadcasting licence means a community broadcasting licence that:
(a) is a broadcasting services bands licence; and (b) is allocated under Part 6A.
transaction includes:
Preliminary Part 1
Section 7
Broadcasting Services Act 1992 19
(a) arrangements under which a person becomes a director of a company; and
(b) the acquisition of things by gift or inheritance.
(2) A determination under paragraph (c) of the definition of broadcasting service in subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(3) For the purposes of paragraph (a) of the definition of associate in subsection (1) and the definition of near relative in subsection (1), if one person is the child of another person because of the definition of child in this section, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.
7 Interpretation—meaning of control
Schedule 1 sets out mechanisms that are to be used in: (a) deciding whether a person is in a position to exercise control
of a licence, a company or a newspaper for the purposes of this Act; and
(b) tracing company interests of persons. Note: Licence is given an extended meaning by subsection 6(1).
8 Interpretation—shareholding interests, voting interests, dividend interests and winding-up interests
(1) For the purposes of this Act: (a) a person has a shareholding interest in a company if the
person is beneficially entitled to, or to an interest in, shares in the company, whether or not any part of the legal ownership of the shares is vested in the person; and
(b) the percentage of the interest is the value of the shares, or of the interest in the shares, as the case may be, on the basis that the value of the shares is equal to the amount paid on the shares, expressed as a percentage of the total of all amounts paid on shares in the company.
(2) For the purposes of this Act:
Part 1 Preliminary
Section 8
20 Broadcasting Services Act 1992
(a) a person has a voting interest in a company if the person is in a position to exercise control of votes cast on a poll at a meeting of the company; and
(b) the percentage of the interest is the greatest percentage of the number of votes, expressed as a percentage of the total number of votes that could be cast on any issue at a meeting of the company, the casting of which the person is in a position to control.
(3) For the purposes of this Act: (a) a person has a dividend interest in a company if:
(i) the person is, or would become if a dividend were declared, beneficially entitled to be paid or credited a dividend by the company; or
(ii) under the memorandum and articles of association of the company, a share of any profits of the company is to be, or may be, paid or credited to the person otherwise than as dividends on shares; and
(b) the percentage of the interest is: (i) if subparagraph (a)(i) applies—the amount of the
dividend to which the person is beneficially entitled or will become beneficially entitled expressed as a percentage of the total of all dividends to which members of the company become entitled at that time; or
(ii) if subparagraph (a)(ii) applies—the amount of the maximum share of any profits of the company that could be paid or credited to the person at a particular time expressed as a percentage of the total of all shares of profits that could be paid or credited to all members of the company at that time.
(4) For the purposes of this Act: (a) a person has a winding-up interest in a company if the person
would be entitled to a share of the property of the company that could be distributed among members of the company if property of the company were distributed among members, whether as a result of a winding-up or otherwise; and
Preliminary Part 1
Section 8A
Broadcasting Services Act 1992 21
(b) the percentage of the interest is the percentage that the value of that part of the property of the company to which the person would be so entitled bears to the total value of the property of the company.
(5) A person may have a voting interest, a dividend interest or a winding-up interest in a company even if the person does not have a beneficial entitlement to, or to an interest in, shares in the company.
8A Captioning taken to be part of program
(1) For the purposes of this Act, if a television program is captioned for the deaf and hearing impaired, the captioning is taken to be part of the program.
(2) Subsection (1) is enacted for the avoidance of doubt.
8AA Designated community radio broadcasting licence
(1) For the purposes of this Act, a community radio broadcasting licence is a designated community radio broadcasting licence if:
(a) the community radio broadcasting licence was allocated under Part 6 (other than under subsection 82(1)); and
(b) the licence area of the community radio broadcasting licence is the same as the licence area of a commercial radio broadcasting licence; and
(c) the community radio broadcasting service or services provided under the community radio broadcasting licence satisfy such conditions (if any) as are set out in a legislative instrument made by the ACMA.
Note: See also section 8AD, which deals with deemed radio broadcasting licence areas.
(2) The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by paragraph (1)(c).
(3) The ACMA must comply with a direction under subsection (2).
Part 1 Preliminary
Section 8AB
22 Broadcasting Services Act 1992
8AB Digital program enhancement content taken to be a radio program
Commercial radio broadcasting services
(1) For the purposes of this Act and any other law of the Commonwealth, if a commercial radio broadcasting licensee provides:
(a) a digital commercial radio broadcasting service; and (b) digital program enhancement content in relation to a radio
program delivered by that service; the digital program enhancement content is taken to be a radio program delivered by that service.
Community radio broadcasting services
(2) For the purposes of this Act and any other law of the Commonwealth, if a designated community radio broadcasting licensee provides:
(a) a digital community radio broadcasting service; and (b) digital program enhancement content in relation to a radio
program delivered by that service; the digital program enhancement content is taken to be a radio program delivered by that service.
National radio broadcasting services
(3) For the purposes of this Act and any other law of the Commonwealth, if a national broadcaster provides:
(a) a digital national radio broadcasting service; and (b) digital program enhancement content in relation to a radio
program delivered by that service; the digital program enhancement content is taken to be a radio program delivered by that service.
8AC Digital radio start-up day
(1) If the ACMA is satisfied that: (a) the ACMA has taken sufficient action under:
Preliminary Part 1
Section 8AC
Broadcasting Services Act 1992 23
(i) Part 3 of this Act; and (ii) Part 2.3 of the Radiocommunications Act 1992;
to facilitate the provision of the following services in a licence area: (iii) digital commercial radio broadcasting services; (iv) digital community radio broadcasting services; (v) digital national radio broadcasting services; and
(b) one or more foundation digital radio multiplex transmitter licences have been issued for the licence area; and
(c) the multiplex capacity, or the combined multiplex capacities, of those licences are sufficient to fulfil the standard access entitlements that are likely to come into existence under subsection 118NQ(2) of the Radiocommunications Act 1992 in its application to the licence area; and
(d) an access undertaking under Division 4B of Part 3.3 of the Radiocommunications Act 1992 is in force for the licence or licences referred to in paragraph (b);
the ACMA may, by writing, declare a specified day to be the digital radio start-up day for the licence area.
(2) A day specified in a declaration under subsection (1) must not be earlier than the day on which the declaration is made.
(3) The ACMA must ensure that: (a) the digital radio start-up day for a metropolitan licence area is
not later than 1 July 2009; and (b) the digital radio start-up day for a regional licence area is the
day specified for the regional licence area in a legislative instrument made by the Minister.
(4) A copy of a declaration under subsection (1) must be made available on the ACMA’s website.
(5) A declaration under subsection (1) is not a legislative instrument.
ACMA to give notice of intention to make a declaration
(6) Before making a declaration under subsection (1), the ACMA must, by notice published on the ACMA’s website, give at least 30 days’ written notice of its intention to make the declaration.
Part 1 Preliminary
Section 8AD
24 Broadcasting Services Act 1992
(7) A notice under subsection (6) is not a legislative instrument.
Definitions
(8) In this section:
licence area means: (a) the licence area of a commercial radio broadcasting licence;
or (b) the licence area of a community radio broadcasting licence,
where that licence area is the same as the licence area of a commercial radio broadcasting licence.
metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:
(a) New South Wales; or (b) Victoria; or (c) Queensland; or (d) Western Australia; or (e) South Australia.
regional licence area means a licence area that is not a metropolitan licence area. Note: See also section 8AD, which deals with deemed radio broadcasting
licence areas.
8AD Deemed radio broadcasting licence areas
Western Suburbs Sydney RA1
(1) For the purposes of: (a) section 8AC of this Act; and (b) the definition of designated BSA radio area in section 5 of
the Radiocommunications Act 1992; and (c) the application of:
(i) any other provision of this Act; or (ii) any other provision of the Radiocommunications Act
1992; or (iii) any other law of the Commonwealth;
Preliminary Part 1
Section 8AD
Broadcasting Services Act 1992 25
to digital commercial radio broadcasting services; the licence area known as Western Suburbs Sydney RA1 is taken to be the same as the commercial radio broadcasting licence area in which is situated the General Post Office of Sydney.
Hobart RA2 and Hobart RA4
(2) For the purposes of: (a) sections 8AA and 8AC of this Act; and (b) the definition of designated BSA radio area in section 5 of
the Radiocommunications Act 1992; and (c) paragraph 9C(1)(i) and subparagraph 9C(1)(j)(ii) of the
Radiocommunications Act 1992; and (d) the application of:
(i) any other provision of this Act; or (ii) any other provision of the Radiocommunications Act
1992; or (iii) any other law of the Commonwealth; to digital community radio broadcasting services;
the licence areas known as Hobart RA2 and Hobart RA4 are taken to be the same as the commercial radio broadcasting licence area in which is situated the General Post Office of Hobart.
Other licence areas
(3) The ACMA may, by legislative instrument, determine that, for the purposes of:
(a) sections 8AA and 8AC of this Act; and (b) the definition of designated BSA radio area in section 5 of
the Radiocommunications Act 1992; and (c) paragraph 9C(1)(i) and subparagraph 9C(1)(j)(ii) of the
Radiocommunications Act 1992; and (d) the application of:
(i) any other provision of this Act; or (ii) any other provision of the Radiocommunications Act
1992; or (iii) any other law of the Commonwealth; to digital community radio broadcasting services;
Part 1 Preliminary
Section 8AE
26 Broadcasting Services Act 1992
a specified licence area of a community radio broadcasting licence is taken to be the same as a specified licence area of a commercial radio broadcasting licence.
(4) The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by subsection (3).
(5) The ACMA must comply with a direction under subsection (4).
8AE Final digital television switch-over day
(1) For the purposes of this Act, the final digital television switch-over day is the last switch-over day.
(2) For the purposes of subsection (1), the last day of a simulcast period is a switch-over day.
(3) In this section:
simulcast period has the same meaning as in Schedule 4.
8AF Regional racing service radio licence
(1) For the purposes of this Act, a regional racing service radio licence is a regional commercial radio broadcasting licence (within the meaning of Division 5C of Part 5), where the following conditions are satisfied in relation to a broadcasting service provided under the licence:
(a) the broadcasting service is promoted, on the broadcasting service:
(i) as a broadcasting service of interest mainly to persons involved in horse racing, harness racing or greyhound racing; or
(ii) using the phrase “racing radio service”; (b) the racing content percentage, in relation to the broadcasting
service, is 60% or more for each day, other than Christmas Day and Good Friday;
(c) if, on a particular day, content other than racing content is broadcast on the broadcasting service—a significant proportion of that content is:
Preliminary Part 1
Section 8B
Broadcasting Services Act 1992 27
(i) relevant to horse racing, harness racing or greyhound racing; or
(ii) of interest mainly to persons involved in horse racing, harness racing or greyhound racing.
(2) For the purposes of this section, racing content percentage means the percentage worked out using the following formula:
(3) For the purposes of this section, racing content means content that consists of:
(a) coverage of a horse race, a harness race or a greyhound race; or
(b) information directly related to horse racing, harness racing or greyhound racing, including:
(i) selections; and (ii) scratchings; and
(iii) betting information; and (iv) track conditions; or
(c) other material that is broadcast during an hour, so long as that material:
(i) is broadcast between 2 races of a kind referred to in paragraph (a); and
(ii) is not broadcast for more than 15 minutes of the hour.
8B Remote Indigenous community
An Indigenous community is a remote Indigenous community for the purposes of this Act if the ACMA so determines by legislative instrument.
Part 1 Preliminary
Section 9
28 Broadcasting Services Act 1992
9 Act to bind the Crown
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory, but nothing in this Act renders the Crown liable to be prosecuted for an offence.
10 Extension of Act to the external Territories
This Act extends to all the external Territories.
10A Application of the Criminal Code
(1) Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
(2) Despite subsection (1), Part 2.5 of the Criminal Code does not apply to an offence against Schedule 5 to this Act.
Categories of broadcasting services Part 2
Section 11
Broadcasting Services Act 1992 29
Part 2—Categories of broadcasting services
11 Categories of broadcasting services
The following categories of broadcasting services are broadcasting services to which this Act relates:
(a) national broadcasting services; (b) commercial broadcasting services; (c) community broadcasting services; (d) subscription broadcasting services; (e) subscription narrowcasting services; (f) open narrowcasting services;
(fa) international broadcasting services.
11A Dual categorisation of international broadcasting services
An international broadcasting service may also fall into another category of broadcasting services.
12 Method of regulating particular services
(1) Commercial broadcasting services, community broadcasting services, subscription television broadcasting services and international broadcasting services require individual licences.
(2) Other broadcasting services (other than national broadcasting services) are to be provided under the relevant class licence.
Dual categorisation of international broadcasting services
(3) An international broadcasting service that also falls into the category of commercial broadcasting services requires both:
(a) an international broadcasting licence; and (b) either:
(i) a commercial radio broadcasting licence; or (ii) a commercial television broadcasting licence.
Part 2 Categories of broadcasting services
Section 13
30 Broadcasting Services Act 1992
(4) An international broadcasting service that also falls into the category of community broadcasting services requires both:
(a) an international broadcasting licence; and (b) a community broadcasting licence.
(5) An international broadcasting service that also falls into the category of subscription television broadcasting services requires both:
(a) an international broadcasting licence; and (b) a subscription television broadcasting licence.
(6) Both of the following rules apply to an international broadcasting service that also falls into a category of broadcasting services covered by subsection (2):
(a) the service requires an international broadcasting licence; (b) the service is to be provided under the relevant class licence.
13 National broadcasting services
(1) National broadcasting services are: (a) broadcasting services provided by the Australian
Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or
(b) broadcasting services provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; or
(c) broadcasting services provided under the Parliamentary Proceedings Broadcasting Act 1946.
(2) National broadcasting services do not include subscription broadcasting services or subscription or open narrowcasting services provided by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
(3) Subsection (2) does not apply to services specified by the Minister by notice in the Gazette.
(4) A specification under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Categories of broadcasting services Part 2
Section 14
Broadcasting Services Act 1992 31
(5) Except as expressly provided by this Act, the regulatory regime established by this Act does not apply to national broadcasting services.
14 Commercial broadcasting services
(1) Commercial broadcasting services are broadcasting services: (a) that provide programs that, when considered in the context of
the service being provided, appear to be intended to appeal to the general public; and
(b) that provide programs that: (i) are able to be received by commonly available
equipment; and (ii) are made available free to the general public; and
(c) that are usually funded by advertising revenue; and (d) that are operated for profit or as part of a profit-making
enterprise; and (e) that comply with any determinations or clarifications under
section 19 in relation to commercial broadcasting services.
(2) For the purposes of the application of subsection (1) to a broadcasting service provided under a licence allocated under section 38C, assume that there is no conditional access system that relates to the broadcasting service.
15 Community broadcasting services
Community broadcasting services are broadcasting services that: (a) are provided for community purposes; and (b) are not operated for profit or as part of a profit-making
enterprise; and (c) that provide programs that:
(i) are able to be received by commonly available equipment; and
(ii) are made available free to the general public; and (d) comply with any determinations or clarifications under
section 19 in relation to community broadcasting services.
Part 2 Categories of broadcasting services
Section 16
32 Broadcasting Services Act 1992
16 Subscription broadcasting services
Subscription broadcasting services are broadcasting services that: (a) provide programs that, when considered in the context of the
service being provided, appear to be intended to appeal to the general public; and
(b) are made available to the general public but only on payment of subscription fees (whether periodical or otherwise); and
(c) comply with any determinations or clarifications under section 19 in relation to subscription broadcasting services.
17 Subscription narrowcasting services
Subscription narrowcasting services are broadcasting services: (a) whose reception is limited:
(i) by being targeted to special interest groups; or (ii) by being intended only for limited locations, for
example, arenas or business premises; or (iii) by being provided during a limited period or to cover a
special event; or (iv) because they provide programs of limited appeal; or (v) for some other reason; and
(b) that are made available only on payment of subscription fees (whether periodical or otherwise); and
(c) that comply with any determinations or clarifications under section 19 in relation to subscription narrowcasting services.
18 Open narrowcasting services
(1) Open narrowcasting services are broadcasting services: (a) whose reception is limited:
(i) by being targeted to special interest groups; or (ii) by being intended only for limited locations, for
example, arenas or business premises; or (iii) by being provided during a limited period or to cover a
special event; or (iv) because they provide programs of limited appeal; or (v) for some other reason; and
Categories of broadcasting services Part 2
Section 18A
Broadcasting Services Act 1992 33
(b) that comply with any determinations or clarifications under section 19 in relation to open narrowcasting services.
(1A) A HDTV multi-channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(1AA) A SDTV multi-channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(1B) A HDTV multi-channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(2) A SDTV multi-channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.
(3) A digital commercial radio broadcasting service is not an open narrowcasting service.
(4) A digital community radio broadcasting service is not an open narrowcasting service.
(5) A digital national radio broadcasting service is not an open narrowcasting service.
18A International broadcasting services
(1) International broadcasting services are broadcasting services that are targeted, to a significant extent, to audiences outside Australia, where:
(a) the means of delivering the services involves the use of a radiocommunications transmitter in Australia (whether alone or in combination with any other means); and
(b) the services comply with any determinations or clarifications under section 19 in relation to international broadcasting services.
(2) A broadcasting service is not an international broadcasting service if the broadcasting service is:
Part 2 Categories of broadcasting services
Section 19
34 Broadcasting Services Act 1992
(a) provided by the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or
(b) provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; or
(c) an exempt broadcasting service (as defined by subsection (3)).
(3) For the purposes of this section, a broadcasting service is an exempt broadcasting service if:
(a) the service delivers only programs packaged outside Australia (which may include programs produced in Australia); and
(b) all relevant programming decisions are made outside Australia; and
(c) the service is transmitted from a place outside Australia to an earth station in Australia for the sole purpose of being immediately re-transmitted to a satellite; and
(d) the satellite is a means of delivering the service (whether alone or in combination with any other means).
(4) The references in this section to localities do not, by implication, affect the application of paragraph 21(1)(b) of the Acts Interpretation Act 1901 and section 10 of this Act to a provision of this Act that deals with a category of broadcasting services other than international broadcasting services.
(5) In this section:
Australia includes the external Territories.
radiocommunications transmitter has the same meaning as in the Radiocommunications Act 1992.
19 ACMA may determine additional criteria or clarify existing criteria
(1) The ACMA may, by notice in the Gazette:
Categories of broadcasting services Part 2
Section 20
Broadcasting Services Act 1992 35
(a) determine additional criteria to those specified in sections 14 to 18A; or
(b) clarify the criteria specified in sections 14 to 18A; for the purpose of distinguishing between categories of broadcasting services.
(2) Different criteria or clarifications may be determined or made for radio services and television services.
(3) The Minister may give specific directions to the ACMA as to the making of determinations and clarifications, and the ACMA must observe those directions.
20 Determinations and clarifications to be disallowable by the Parliament
Determinations and clarifications under section 19 are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.
21 Requests to ACMA to decide which category a broadcasting service falls into
(1) A person who is providing, or who proposes to provide, a broadcasting service may apply to the ACMA for an opinion as to which category, or categories, of broadcasting services the service falls into.
(2) An application must be in accordance with a form approved in writing by the ACMA, and must state the applicant’s opinion as to which category, or categories, of broadcasting services the service falls into.
(3) If the ACMA considers that additional information is required before an opinion can be given, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(4) The ACMA must, as soon as practicable after: (a) receiving the application; or
Part 2 Categories of broadcasting services
Section 21
36 Broadcasting Services Act 1992
(b) if the ACMA has requested further information—receiving that further information;
give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into.
(5) If the ACMA has given an opinion under this section to the provider of a broadcasting service, neither the ACMA nor any other Government agency may, while the circumstances relating to the broadcasting service remain substantially the same as those advised to the ACMA in relation to the application for the opinion:
(a) take any action against the provider of the service during the period of 5 years commencing on the day on which the opinion is given on the basis that the service falls into a different category, or different categories, of broadcasting services than that advised in the opinion; or
(b) unless the ACMA has made a determination or clarification under section 19 after that opinion was given that places the broadcasting service in a different category or different categories—take any action against the provider of the service after the end of that period on the basis that the service falls into a different category, or different categories, of broadcasting services.
(6) If the ACMA does not, within 45 days after: (a) receiving the application; or (b) if the ACMA has requested further information—receiving
that further information; give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into, the ACMA is taken to have given an opinion at the end of that period that accords with the applicant’s opinion.
(7) The ACMA may charge a fee for providing an opinion under this section.
(8) The ACMA must not give an opinion under this section that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.
Categories of broadcasting services Part 2
Section 22
Broadcasting Services Act 1992 37
(9) A person must not, in an application under this section, state an opinion that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.
22 Matters to be considered by ACMA
In making determinations or clarifications under section 19 in relation to broadcasting services, and in giving opinions under section 21 in relation to broadcasting services, the ACMA is to have regard to:
(a) the geographic coverage of those services; and (b) the number of persons who receive or are able to receive
those services; and (c) the accessibility of those services, including:
(i) whether those services are encrypted; and (ii) whether their availability is otherwise restricted,
whether because of the high cost of the equipment required to receive those services, the controlled supply of that equipment or otherwise; and
(iii) whether their comprehensibility is otherwise restricted; and
(d) the duration and frequency of the provision of those services, including whether those services are provided for a set period only; and
(e) the nature of the audience to which those services are targeted; and
(f) the nature of the programs being provided by those services, including:
(i) the level of interest in the subject matter of those programs; and
(ii) whether those programs are directed at a specialised audience; and
(iii) the social and cultural impact of those programs; and (g) such other matters as the ACMA thinks fit.
Part 3 Planning of the broadcasting services bands
Section 23
38 Broadcasting Services Act 1992
Part 3—Planning of the broadcasting services bands
23 Planning criteria
In performing functions under this Part, the ACMA is to promote the objects of this Act including the economic and efficient use of the radiofrequency spectrum, and is to have regard to:
(a) demographics; and (b) social and economic characteristics within the licence area,
within neighbouring licence areas and within Australia generally; and
(c) the number of existing broadcasting services and the demand for new broadcasting services within the licence area, within neighbouring licence areas and within Australia generally; and
(d) developments in technology; and (e) technical restraints relating to the delivery or reception of
broadcasting services; and (f) the demand for radiofrequency spectrum for services other
than broadcasting services; and (g) such other matters as the ACMA considers relevant.
24 ACMA to determine priorities
(1) Before preparing frequency allotment plans or licence area plans, the ACMA must, by notice in writing, determine priorities, as between particular areas of Australia and as between different parts of the broadcasting services bands, for the preparation of those plans.
(2) The ACMA may, by notice in writing, vary priorities.
Planning of the broadcasting services bands Part 3
Section 25
Broadcasting Services Act 1992 39
25 Preparation of frequency allotment plans
(1) Where the Minister has, under subsection 31(1) of the Radiocommunications Act 1992, referred a part of the radiofrequency spectrum to the ACMA for planning, the ACMA must prepare in writing a frequency allotment plan that determines the number of channels that are to be available in particular areas of Australia to provide broadcasting services or restricted datacasting services, or both, using that part of the radiofrequency spectrum.
(2) The ACMA may, by notice in writing, vary a frequency allotment plan prepared under subsection (1).
(2A) If the Minister has, under subsection 31(1A) of the Radiocommunications Act 1992, referred a part of the radiofrequency spectrum to the ACMA for planning, the ACMA must, by legislative instrument, prepare a frequency allotment plan that determines the number of channels that are to be available in particular areas of Australia to provide the following services using that part of the radiofrequency spectrum:
(a) digital commercial radio broadcasting services; (b) digital community radio broadcasting services; (c) digital national radio broadcasting services; (d) restricted datacasting services.
(2B) The ACMA may, by legislative instrument, vary a frequency allotment plan prepared under subsection (2A).
(3) In preparing or varying a frequency allotment plan, the ACMA must comply with any directions, whether of a general or specific nature, given to the ACMA in writing by the Minister.
(4) Sections 23, 24 and 27 do not apply in relation to the preparation or variation of a frequency allotment plan to the extent to which the frequency allotment plan or the variation, as the case may be, relates to any of the following services:
(a) digital commercial radio broadcasting services; (b) digital community radio broadcasting services; (c) digital national radio broadcasting services;
Part 3 Planning of the broadcasting services bands
Section 26
40 Broadcasting Services Act 1992
(d) restricted datacasting services.
26 Preparation of licence area plans
(1) The ACMA must, by legislative instrument, prepare licence area plans that determine the number and characteristics, including technical specifications, of broadcasting services that are to be available in particular areas of Australia with the use of the broadcasting services bands, and those plans must be consistent with the relevant frequency allotment plan.
(1A) To the extent to which a licence area plan prepared under subsection (1) deals with:
(a) digital commercial radio broadcasting services; or (b) digital community radio broadcasting services; or (c) digital national radio broadcasting services;
the licence area plan is not required to determine the technical specifications of those services.
Television licence area plans
(1B) The ACMA may, by legislative instrument, prepare licence area plans that:
(a) specify the channels that, under the relevant frequency allotment plan, are to be available in particular areas of Australia to provide the following services:
(i) commercial television broadcasting services; (ii) national television broadcasting services;
(iii) other television broadcasting services; with the use of the broadcasting services bands; and
(b) allot, or empower the ACMA to allot, those channels to: (i) particular commercial television broadcasting licensees;
or (ii) particular national broadcasters; or
(iii) particular providers of television broadcasting services (other than commercial television broadcasting licensees or national broadcasters);
as the case requires; and
Planning of the broadcasting services bands Part 3
Section 26
Broadcasting Services Act 1992 41
(c) determine the characteristics, including technical specifications, of the transmission of each of the following services:
(i) commercial television broadcasting services; (ii) national television broadcasting services;
(iii) other television broadcasting services; using those channels; and
(d) determine, or empower the ACMA to determine, any technical limitations on the use of a particular channel that the ACMA considers should be applicable; and
(e) determine, or empower the ACMA to determine, whether the use of a particular channel depends on any event or circumstances that the ACMA considers should be applicable.
(1C) A licence area plan prepared under subsection (1B) is to be known as a television licence area plan.
(1D) A television licence area plan may allot, or empower the ACMA to allot, different channels to:
(a) a particular commercial television broadcasting licensee; or (b) a particular national broadcaster; or (c) a particular provider of a television broadcasting service
(other than a commercial television broadcasting licensee or a national broadcaster);
for different periods.
(1E) A television licence area plan may allot, or empower the ACMA to allot, 2 or more channels to:
(a) a particular commercial television broadcasting licensee; or (b) a particular national broadcaster; or (c) a particular provider of a television broadcasting service
(other than a commercial television broadcasting licensee or a national broadcaster).
(1F) A television licence area plan must be consistent with the relevant frequency allotment plan.
Part 3 Planning of the broadcasting services bands
Section 26
42 Broadcasting Services Act 1992
(1G) A television licence area plan does not need to identify a particular television broadcasting service by name.
(1H) When the television licence area plan for a particular area comes into force:
(a) subsection (1) ceases to apply to: (i) commercial television broadcasting services; and
(ii) national television broadcasting services; and (iii) other television broadcasting services; provided in the area; and
(b) if: (i) immediately before the television licence area plan
came into force, a licence area plan (the existing licence area plan) prepared under subsection (1) was in force for the area; and
(ii) the existing licence area plan relates wholly to television broadcasting services;
the existing licence area plan ceases to have effect; and (c) if:
(i) immediately before the television licence area plan came into force, a licence area plan (the existing licence area plan) prepared under subsection (1) was in force for the area; and
(ii) the existing licence area plan relates partly to television broadcasting services and partly to other broadcasting services;
the existing licence area plan ceases to have effect to the extent to which it relates to television broadcasting services.
(1J) The television licence area plan for an area that is the licence area of a commercial television broadcasting licence must:
(a) not come into force before the end of the simulcast period, or the simulcast-equivalent period, for the area; and
(b) come into force before the designated re-stack day for the area.
(1K) For the purposes of this Act, the designated re-stack day for an area is:
Planning of the broadcasting services bands Part 3
Section 26
Broadcasting Services Act 1992 43
(a) 31 December 2014; or (b) if the Minister, by writing, specifies a later day for the area—
that later day.
(1L) The Minister must not specify a day under paragraph (1K)(b) unless the Minister is satisfied that a failure to specify the day would be likely to result in significant difficulties of a technical or engineering nature for:
(a) a commercial television broadcasting licensee; or (b) a national broadcaster; or (c) a provider of a television broadcasting service (other than a
commercial television broadcasting licensee or a national broadcaster).
(1M) Sections 23 and 27 have effect as if a function or power conferred on the ACMA by a television licence area plan were a function conferred on the ACMA by this section.
Variation
(2) The ACMA may, by legislative instrument, vary a licence area plan.
Planning criteria—before designated re-stack day
(7) Paragraphs 23(a) and (b) do not apply in relation to: (a) the preparation of a television licence area plan for a
particular area; or (b) the variation of a television licence area plan for a particular
area; or (c) the performance of a function, or the exercise of a power, by
the ACMA under a television licence area plan for a particular area;
before the designated re-stack day for the area. Note: For designated re-stack day, see subsection 26(1K).
Part 3 Planning of the broadcasting services bands
Section 26A
44 Broadcasting Services Act 1992
Ministerial direction
(8) The Minister may, by legislative instrument, direct the ACMA about the exercise of its powers to make or vary a television licence area plan for a particular area.
(9) The ACMA must comply with a direction under subsection (8).
(10) Subsections (8) and (9) cease to have effect in relation to a particular area at the start of the designated re-stack day for the area.
Legislative instruments
(11) If a determination made by the ACMA under a television licence area plan is in writing, the determination is not a legislative instrument.
(12) An instrument under paragraph (1K)(b) is not a legislative instrument.
Definitions
(13) In this section:
national television broadcasting service has the same meaning as in Schedule 4.
simulcast-equivalent period has the same meaning as in Schedule 4.
simulcast period has the same meaning as in Schedule 4.
television broadcasting service means a broadcasting service that provides television programs. Note: For designation of licence areas, see section 29.
26A Licence area plans—multi-channelled commercial television broadcasting services
(1) If:
Planning of the broadcasting services bands Part 3
Section 26AA
Broadcasting Services Act 1992 45
(a) a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2007; and
(b) the licence authorises the licensee to provide a HDTV multi-channelled commercial television broadcasting service in the licence area;
the relevant licence area plan is not required to deal with the HDTV multi-channelled commercial television broadcasting service.
(1A) If: (a) a commercial television broadcasting licence for a licence
area was in force immediately before 1 January 2007; and (b) the licence authorises the licensee to provide a SDTV
multi-channelled commercial television broadcasting service in the licence area;
the relevant licence area plan is not required to deal with the SDTV multi-channelled commercial television broadcasting service.
(3) In this section:
HDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
relevant licence area plan means the relevant licence area plan prepared under subsection 26(1).
SDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
simulcast-equivalent period has the same meaning as in Schedule 4.
simulcast period has the same meaning as in Schedule 4.
26AA Compliance with television licence area plan
(1) If: (a) a television licence area plan is applicable to the transmission
of one or more commercial television broadcasting services in a particular area; and
Part 3 Planning of the broadcasting services bands
Section 26B
46 Broadcasting Services Act 1992
(b) those services are provided under a particular commercial television broadcasting licence;
the licensee must not transmit any of those commercial television broadcasting services in that area otherwise than in accordance with the television licence area plan.
(2) If: (a) a television licence area plan is applicable to the transmission
of one or more national television broadcasting services in a particular area; and
(b) those services are provided by a particular national broadcaster;
the national broadcaster must not transmit any of those national television broadcasting services in that area otherwise than in accordance with the television licence area plan.
(3) If: (a) a television licence area plan is applicable to the transmission
of one or more television broadcasting services in a particular area; and
(b) those services are not provided: (i) under a commercial television broadcasting licence; or
(ii) by a national broadcaster; the provider of those television broadcasting services must not transmit any of those services in that area otherwise than in accordance with the television licence area plan.
(4) In this section:
national television broadcasting service has the same meaning as in Schedule 4.
television broadcasting service means a broadcasting service that provides television programs.
26B Licence area plans—multi-channelled national television broadcasting services
(1) Licence area plans are not required to deal with SDTV multi-channelled national television broadcasting services.
Planning of the broadcasting services bands Part 3
Section 26C
Broadcasting Services Act 1992 47
(1A) Licence area plans are not required to deal with HDTV multi-channelled national television broadcasting services.
(3) In this section:
HDTV multi-channelled national television broadcasting service has the same meaning as in Schedule 4.
licence area plan means a licence area plan prepared under subsection 26(1).
SDTV multi-channelled national television broadcasting service has the same meaning as in Schedule 4.
simulcast-equivalent period has the same meaning as in Schedule 4.
simulcast period has the same meaning as in Schedule 4.
26C Licence area plans not required to deal with certain digital radio broadcasting services
Commercial radio broadcasting services
(1) If: (a) a commercial radio broadcasting licence was in force
immediately before the digital radio start-up day for the licence area; and
(b) the licence authorises the licensee to provide digital commercial radio broadcasting services in the licence area;
the relevant licence area plan is not required to deal with those services.
(2) If: (a) the ACMA allocates a digital commercial radio broadcasting
licence in accordance with subsection 35D(3); and (b) the licence authorises the licensee to provide digital
commercial radio broadcasting services in the licence area; the relevant licence area plan is not required to deal with those services.
Part 3 Planning of the broadcasting services bands
Section 26D
48 Broadcasting Services Act 1992
Community radio broadcasting services
(3) If: (a) a designated community radio broadcasting licence was in
force immediately before the digital radio start-up day for the licence; and
(b) the licence authorises the licensee to provide digital community radio broadcasting services in the licence area;
the relevant licence area plan is not required to deal with those services.
26D Licence area plans—how digital radio broadcasting services may be dealt with
(1) This section applies if a licence area plan deals with: (a) digital commercial radio broadcasting services; or (b) digital community radio broadcasting services; or (c) digital national radio broadcasting services.
(2) The licence area plan is not required to identify: (a) individual digital commercial radio broadcasting services; or (b) individual digital community radio broadcasting services; or (c) individual digital national radio broadcasting services.
(3) It is sufficient if the licence area plan deals collectively with: (a) the digital commercial radio broadcasting services; and (b) the digital community radio broadcasting services; and (c) the digital national radio broadcasting services;
that, from time to time, are, or are to be, transmitted under the digital radio multiplex transmitter licence or licences issued, or to be issued, in relation to the area concerned.
27 Processes to be public
(1) In performing its functions under sections 24, 25 and 26, the ACMA must make provision for wide public consultation.
Planning of the broadcasting services bands Part 3
Section 27
Broadcasting Services Act 1992 49
Consultation—decisions relating to television licence area plans
(1A) Subsection (1) does not apply to: (a) the preparation of a television licence area plan for a
particular area; or (b) the variation of a television licence area plan for a particular
area; or (c) the performance of a function, or the exercise of a power, by
the ACMA under a television licence area plan for a particular area; or
(d) the variation of a frequency allotment plan, to the extent that the variation:
(i) relates to the determination of the number of channels that are to be available in a particular area to provide television broadcasting services; and
(ii) was made in connection with the preparation or variation of a television licence area plan for the area;
before the designated re-stack day for the area. Note: For designated re-stack day, see subsection 26(1K).
(1B) If, before the designated re-stack day for a particular area, the ACMA takes any of the following actions:
(a) the ACMA prepares a television licence area plan for the area;
(b) the ACMA varies a television licence area plan for the area; (c) the ACMA performs a function, or exercises a power, under
a television licence area plan for the area; (d) the ACMA varies a frequency allotment plan, to the extent
that the variation: (i) relates to the determination of the number of channels
that are to be available in the area to provide television broadcasting services; and
(ii) was made in connection with the preparation or variation of a television licence area plan for the area;
the ACMA must, in taking the relevant action, make provision for consultation with:
(e) commercial television broadcasting licensees who are likely to be affected by the preparation or variation of the plan; and
Part 3 Planning of the broadcasting services bands
Section 29
50 Broadcasting Services Act 1992
(f) national broadcasters; and (g) community television broadcasting licensees who are likely
to be affected by the preparation or variation of the plan; and (h) such other persons (if any) as the ACMA considers
appropriate. Note: For designated re-stack day, see subsection 26(1K).
Record-keeping requirements
(2) The ACMA is to keep a record of, and make available for public inspection, all advice received by the ACMA, and all assumptions made by the ACMA, in performing its functions under sections 24, 25 and 26.
29 Designation of licence areas
(1) Before allocating a new commercial television broadcasting licence, commercial radio broadcasting licence or community broadcasting licence (other than a temporary community broadcasting licence) that is a broadcasting services bands licence, the ACMA is to designate one of the areas referred to in whichever of subsection 26(1) or (1B) is applicable as the licence area of the licence.
(2) If the ACMA varies a licence area plan, the ACMA may vary the designation of the relevant licence areas.
(3) This section does not apply to a licence allocated under section 38C.
30 ACMA may determine population figures
(1) The ACMA may, by notice in writing, determine the licence area population of a licence area.
(2) The ACMA may, by notice in writing, determine a number that is to be the population of Australia for the purposes of this Act.
(3) In making a determination, the ACMA is to have regard to the most recently published census count prepared by the Australian Statistician.
Planning of the broadcasting services bands Part 3
Section 31
Broadcasting Services Act 1992 51
(4) The ACMA is to make a new determination of the licence area population of a licence area if the licence area is changed.
(5) The ACMA is to specify, in a determination of the licence area population of a licence area:
(a) the percentage of the population of Australia constituted by that licence area population; and
(b) the percentage of that licence area population that is attributable to an overlap area.
31 Minister may reserve capacity for national broadcasters or community broadcasters
(1) The Minister may notify the ACMA in writing that capacity in the broadcasting services bands is to be reserved for a specified number of:
(a) national broadcasting services; or (b) community broadcasting services (other than services
provided by temporary community broadcasting licensees); but such a notice must not affect the provision of services in accordance with a licence already allocated by the ACMA under this Act or in accordance with a class licence.
(2) The ACMA must not, except in accordance with section 34, allocate a licence or determine a class licence that would allow the provision of broadcasting services (other than services provided by national broadcasters or community broadcasting licensees) which would make use of reserved capacity in the broadcasting services bands.
32 Reservations to be disallowable by the Parliament
A notice under section 31 is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
33 Development of technical planning guidelines
The ACMA is to develop in writing guidelines for the technical planning of individual services that use the broadcasting services bands as a means of delivery.
Part 3 Planning of the broadcasting services bands
Section 34
52 Broadcasting Services Act 1992
34 Alternative uses of broadcasting services bands
(1) If: (a) the ACMA has advertised under section 38 for applications
for the allocation of one or more commercial television broadcasting licences or commercial radio broadcasting licences that are broadcasting services bands licences and that licence is not allocated or not all of those licences are allocated; or
(b) broadcasting services bands spectrum is available in a licence area but has not been made available for commercial television broadcasting licences or commercial radio broadcasting licences; or
(c) broadcasting services bands spectrum has been reserved under section 31 but has not been made available for the purpose for which it was reserved; or
(d) broadcasting services bands spectrum is available but the ACMA has not commenced or completed planning and allocation processes in relation to that spectrum;
the ACMA may, by written instrument, determine that the part or parts of the radiofrequency spectrum concerned is or are available for allocation, for a period specified by the ACMA:
(e) for the temporary transmission or the re-transmission of programs; or
(ea) to temporary community broadcasting licensees; or (f) to providers of subscription broadcasting services,
subscription narrowcasting services or open narrowcasting services; or
(fa) for the transmission of datacasting services on a temporary basis; or
(g) for other purposes.
(2) In making a determination under subsection (1), the ACMA is to have regard to:
(a) the possible future demand for the use of that part of the radiofrequency spectrum; and
(b) such other matters as the ACMA considers relevant.
Planning of the broadcasting services bands Part 3
Section 35
Broadcasting Services Act 1992 53
(3) The ACMA may, by written instrument, determine that a part or parts of the broadcasting services bands spectrum is or are available for allocation for the purposes of the transmission of datacasting services.
(4) In making a determination under subsection (3), the ACMA is to have regard to:
(a) the possible future demand for the use of that part of the radiofrequency spectrum for the provision of commercial television broadcasting services; and
(b) such other matters as the ACMA considers relevant.
(4A) Each part determined under subsection (3) must be 7 MHz. However, this rule does not prevent a particular part from being determined even if it adjoins:
(a) another part that is also specified in the determination; or (b) 2 other parts that are also specified in the determination.
35 Notification of decisions under this Part
If the ACMA makes an instrument under this Part, the ACMA must publish in the Gazette a notice stating:
(a) that the instrument has been made; and (b) the places where copies of the instrument can be purchased.
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 1 Allocation of licences
Section 35C
54 Broadcasting Services Act 1992
Part 4—Commercial television broadcasting licences and commercial radio broadcasting licences
Division 1—Allocation of licences
35C Digital radio moratorium
(1) During the digital radio moratorium period for a licence area, the ACMA must not allocate, under subsection 36(1), a commercial radio broadcasting licence to provide digital commercial radio broadcasting services in the licence area.
(2) Subsection (1) has effect subject to section 35D.
(3) For the purposes of this Act, the digital radio moratorium period for a licence area is the 6-year period beginning at the start of the digital radio start-up day for the licence area.
35D Exception to the digital radio moratorium—failure to provide a digital commercial radio broadcasting service
Scope
(1) This section applies to a commercial radio broadcasting licence if: (a) the licence was in force immediately before the digital radio
start-up day for the licence area; and (b) the licence authorises the licensee to provide any digital
commercial radio broadcasting services in the licence area; and
(c) at a particular time (the relevant time) during the digital radio moratorium period for the licence area, the ACMA is satisfied that the licensee is not providing at least one digital commercial radio broadcasting service under the licence in the licence area.
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Allocation of licences Division 1
Section 35D
Broadcasting Services Act 1992 55
Licence ceases to authorise the provision of digital commercial radio broadcasting services etc.
(2) As soon as practicable after the relevant time, the ACMA must, by written notice given to the licensee, determine that:
(a) the licence ceases to authorise the licensee to provide one or more digital commercial radio broadcasting services in the licence area; and
(b) the licence is taken, for the purposes of this Act, to have been allocated as a licence to provide an analog commercial radio broadcasting service; and
(c) despite subsection 36A(5), the licence is subject to the condition that the licensee may only provide an analog commercial radio broadcasting service under the licence.
ACMA must allocate a new commercial radio broadcasting licence for the licence area
(3) As soon as practicable after a notice under subsection (2) is given to a licensee of a commercial radio broadcasting licence (the first licence), the ACMA must:
(a) allocate, under subsection 36(1), a single commercial radio broadcasting licence for the licence area of the first licence; and
(b) allocate the licence as a licence to provide digital commercial radio broadcasting services in that licence area.
ACMA may specify circumstances in which a licensee is taken to be providing a digital commercial radio broadcasting service
(4) The ACMA may, by legislative instrument, specify circumstances in which a commercial radio broadcasting licensee is taken, for the purposes of paragraph (1)(c), to be providing a digital commercial radio broadcasting service under the licence in the licence area.
(5) A copy of an instrument under subsection (4) must be made available on the ACMA’s website.
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 1 Allocation of licences
Section 36
56 Broadcasting Services Act 1992
36 ACMA to determine system for allocating licences
(1) The ACMA is to determine in writing a price-based system for allocating:
(a) commercial television broadcasting licences that are broadcasting services bands licences; and
(b) commercial radio broadcasting licences that are broadcasting services bands licences.
(2) The Minister may give specific directions to the ACMA for the purpose of a determination.
(3) Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.
(4) If a commercial television broadcasting licence or a commercial radio broadcasting licence referred to in subsection (1) is allocated, the ACMA must, unless the allocation system adopted was public, publish in the Gazette the name of the successful applicant and the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.
36A Commercial radio broadcasting licences to provide analog or digital commercial radio broadcasting services
Licences in force immediately before the commencement of this section
(1) If a commercial 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 commercial radio broadcasting service.
Licences allocated before the digital radio start-up day for the licence area
(2) If the ACMA allocates a commercial 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
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Allocation of licences Division 1
Section 36A
Broadcasting Services Act 1992 57
licence to provide an analog commercial radio broadcasting service.
Licences allocated on or after digital radio start-up day for the licence area
(3) If the ACMA allocates a commercial 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 commercial radio broadcasting service; or
(b) a licence to provide digital commercial radio broadcasting services.
Licence conditions
(4) Subject to subsection (5), if a commercial radio broadcasting licence is or was allocated as a licence to provide an analog commercial radio broadcasting service, the licence is subject to the condition that the licensee may only provide an analog commercial radio broadcasting service under the licence.
(5) If: (a) a commercial 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 commercial 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 commercial radio broadcasting licence is allocated as a licence to provide digital commercial radio broadcasting services, the licence is subject to the condition that the licensee may only provide digital commercial radio broadcasting services under the licence.
Section 35D
(7) This section has effect subject to section 35D.
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 1 Allocation of licences
Section 37
58 Broadcasting Services Act 1992
Subsection 40(1) licences
(8) This section does not apply to a commercial radio broadcasting licence that is or was allocated under subsection 40(1).
37 When licences must not be allocated
(1) A licence is not to be allocated to an applicant if: (a) the applicant is not a company that is registered as a
company under Part 2A.2 of the Corporations Act 2001 and has a share capital; or
(b) the ACMA decides that subsection 41(2) applies to the applicant.
(2) Paragraph (1)(b) does not require the ACMA to consider the application of section 41 in relation to an applicant before allocating a licence to the applicant.
37A Limitation on number of commercial television broadcasting licences
The ACMA must ensure that the number of commercial television broadcasting licences that:
(a) have the same licence area; and (b) are broadcasting services bands licences;
does not exceed 3.
38 ACMA to advertise for applications for certain licences
(1) Where the ACMA is going to allocate one or more commercial television broadcasting licences or commercial radio broadcasting licences referred to in subsection 36(1), the ACMA is to advertise, in a manner determined by the ACMA, for applications for licences of that kind, and is to include in the advertisements:
(a) the date before which applications must be received by the ACMA; and
(b) a statement specifying how details of: (i) the system determined under section 36; and
(ii) the conditions that are to apply to the licence; and
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Allocation of licences Division 1
Section 38A
Broadcasting Services Act 1992 59
(iii) the licence area of the licence, the licence area population of the licence and any areas of overlap with other licence areas;
can be obtained.
(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.
38A Additional commercial television licences in single markets
Circumstances in which existing licensee may apply for additional licence
(1) If: (a) a particular licence area is the licence area of only one
commercial television broadcasting licence (the parent licence) that is in force; and
(aa) the parent licence is not a licence allocated under section 38C; and
(b) additional commercial television broadcasting licences can be allocated for the licence area;
the existing licensee may apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.
ACMA must grant additional licence
(2) As soon as practicable, the ACMA must allocate an additional commercial television broadcasting licence to the existing licensee for the licence area, so long as:
(a) all of the following conditions are satisfied: (i) no licence for the licence area previously allocated
under this section to the existing licensee has been cancelled because of a breach of the condition set out in paragraph 7(1)(i) of Schedule 2;
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 1 Allocation of licences
Section 38A
60 Broadcasting Services Act 1992
(ii) no licence for the licence area previously held by the existing licensee has been cancelled because of a breach of the condition set out in subsection (9);
(iii) no licence for the licence area previously held by the existing licensee has been surrendered; or
(b) both: (i) paragraph (a) does not apply; and
(ii) the ACMA is satisfied that there are exceptional circumstances.
Amalgamation of licence areas in some cases
(7) If: (a) more than 30% of the licence area population of a licence
area is attributable to an overlap area; or (b) a licence area is entirely within another licence area;
this section applies as if the 2 licence areas were one.
Fee for additional licence
(8) On allocation of the additional licence, the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.
Licence conditions
(9) On the allocation of the additional licence, it becomes a condition of both the parent licence and the additional licence that the licensee will continue to provide at least one service under each of those licences for at least 2 years after the date of allocation of the additional licence.
Restrictions on transfer of licences
(10) During the period of 2 years after the date of allocation of the additional licence, any attempt by any person to transfer either the parent licence or the additional licence is of no effect unless both
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Allocation of licences Division 1
Section 38B
Broadcasting Services Act 1992 61
of those licences are transferred at the same time by the same person to the same transferee.
Section 37 restrictions apply
(11) This section has effect subject to section 37.
38B Additional commercial television licences in 2-station markets
(1) If: (a) a particular licence area is the licence area of only 2
commercial television broadcasting licences (the parent licences) that are in force; and
(c) an additional commercial television broadcasting licence can be allocated for the licence area; and
(ca) the ACMA, by notice published in the Gazette, invites: (i) the existing licensees to give the ACMA a joint written
notice under paragraph (d); and (ii) each existing licensee to give the ACMA a written
notice under paragraph (e); during the period specified in the notice;
then, within the period specified in the paragraph (ca) notice: (d) the existing licensees may give the ACMA a joint written
notice stating that: (i) a company specified in the notice (the joint-venture
company) will apply for an additional commercial television broadcasting licence for the licence area; and
(ii) the joint-venture company is jointly owned by the existing licensees; and
(iii) the joint-venture company is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital; or
(e) each existing licensee may give the ACMA a written notice stating that the licensee will apply separately for an additional commercial television broadcasting licence for the licence area.
(1A) A notice under paragraph (1)(ca) is not a legislative instrument.
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 1 Allocation of licences
Section 38B
62 Broadcasting Services Act 1992
Application by joint-venture company
(2) If a notice is given under paragraph (1)(d), the joint-venture company may, within 12 months after the notice is given, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.
Separate applications by existing licensees
(3) If an existing licensee gives a notice under paragraph (1)(e), the licensee may, within 12 months after the notice is given, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.
Allocation of additional licence to joint-venture company
(5) As soon as practicable after receiving an application under subsection (2), the ACMA must allocate an additional commercial television broadcasting licence to the joint-venture company for the licence area, so long as the ACMA is satisfied that the joint-venture company is jointly owned by the existing licensees.
Allocation of additional licence to existing licensee
(6) If the ACMA has received applications from both of the existing licensees under subsection (3), the ACMA must allocate an additional commercial television broadcasting licence to one of those licensees for the licence area in accordance with a price-based system determined under subsection (10).
(7) If: (a) each existing licensee gives a notice under paragraph (1)(e);
and (b) by the end of the 12-month period beginning at the time
when the notice is given: (i) the ACMA has received an application from only one
existing licensee (the first licensee) under subsection (3); and
(ii) the ACMA has not received a notice from the other existing licensee stating that it will not be applying under subsection (3);
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Allocation of licences Division 1
Section 38B
Broadcasting Services Act 1992 63
the ACMA must, as soon as practicable after the end of that 12-month period, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.
(8) If: (a) each existing licensee gives a notice under paragraph (1)(e);
and (b) before the end of the 12-month period beginning at the time
when the notice is given, the ACMA receives: (i) an application from one existing licensee (the first
licensee) under subsection (3); and (ii) a notice from the other existing licensee stating that it
will not be applying under subsection (3); the ACMA must, as soon as practicable after both have been received, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.
(9) If only one existing licensee gives a notice under paragraph (1)(e), then, as soon as practicable after receiving an application under subsection (3) from that licensee, the ACMA must allocate an additional commercial television broadcasting licence to that licensee for the licence area.
Price-based system for allocating licences where separate applications have been received
(10) The ACMA may determine in writing a price-based system for allocating commercial television broadcasting licences under subsection (6).
(11) The Minister may give specific directions to the ACMA for the purpose of a determination.
(12) Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.
(13) If a commercial television broadcasting licence is allocated under subsection (6), the ACMA must, unless the allocation system adopted was public, publish in the Gazette:
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 1 Allocation of licences
Section 38B
64 Broadcasting Services Act 1992
(a) the name of the successful applicant; and (b) the amount that the applicant agreed to pay to the
Commonwealth for the allocation of the licence.
Amalgamation of licence areas in some cases
(14) The ACMA may, by writing, determine that, if: (a) more than 30% of the licence area population of a specified
licence area is attributable to a specified overlap area; or (b) a specified licence area is entirely within another specified
licence area; this section applies as if the 2 licence areas were one.
(14A) If a determination is made under subsection (14) for 2 licence areas that are remote licence areas (within the meaning of Schedule 4) because of paragraph (14)(b), this section applies as if the single licence area referred to in subsection (14) were the licence area that is entirely within the other licence area.
(15) A determination under subsection (14) has effect accordingly.
(16) A determination under subsection (14) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Fee for additional licence
(17) On allocation of the additional licence under subsection (5), (7), (8) or (9), the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.
Licence conditions
(18) Each additional licence allocated under this section is subject to the following conditions:
(a) the licensee may only provide commercial television broadcasting services in digital mode (within the meaning of Schedule 4); and
(b) if the licence was allocated before the commencement of section 38C and the licence area for the licence is wholly
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Allocation of licences Division 1
Section 38B
Broadcasting Services Act 1992 65
outside a remote licence area (within the meaning of Schedule 4)—the licensee will commence to provide at least one commercial television broadcasting service in SDTV digital mode (within the meaning of Schedule 4) by whichever is the earlier of the following times:
(i) the time that is notified in writing to the licensee by the ACMA;
(ii) the start of 1 January 2004; and (c) if the licence was allocated before the commencement of
section 38C and the licence area for the licence is not of the kind mentioned in paragraph (b)—the licensee will commence to provide at least one commercial television broadcasting service in SDTV digital mode (within the meaning of Schedule 4) within 1 year of being allocated the licence or within such longer period as is notified in writing by the ACMA.
(19) Paragraphs 7(1)(i), 7(1)(l) and 7(1)(m) of Schedule 2 do not apply to an additional licence allocated under this section before the commencement of section 38C.
(19A) Paragraphs 7(1)(l) and (m) of Schedule 2 do not apply to an additional licence allocated under this section after the commencement of section 38C.
(20) On the allocation of an additional licence under subsection (5), it becomes a condition of:
(a) the additional licence; and (b) each parent licence;
that the licensee concerned will continue to provide at least one service under the licence concerned for at least 2 years after the earliest occasion on which the licensee of the additional licence commences to provide a commercial television broadcasting service under the additional licence.
(21) On the allocation of an additional licence under subsection (6), (7), (8) or (9), it becomes a condition of:
(a) the additional licence; and
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 1 Allocation of licences
Section 38B
66 Broadcasting Services Act 1992
(b) the parent licence concerned; that the licensee will continue to provide at least one service under the licence concerned for at least 2 years after the earliest occasion on which the licensee of the additional licence commences to provide a commercial television broadcasting service under the additional licence.
(21A) The condition specified in subsection (21B) applies if: (a) a commercial television broadcasting licence is allocated to a
joint-venture company under subsection (5); and (b) the licence is transferred to another company (the transferee
company); and (c) an election is in force under subclause 6(7B) of Schedule 4 in
relation to any or all of the commercial television broadcasting services provided under the licences referred to in subsection (1) as the parent licences.
(21B) The licence held by the transferee company is subject to the condition that the transferee company will continue to transmit at least one commercial television broadcasting service provided under a parent licence in relation to which that election is in force.
Restrictions on transfer of licences
(22) During the period of 2 years after the date of allocation of an additional licence under subsection (5), any attempt by any person to transfer the additional licence is of no effect.
(23) During the period of 2 years after the date of allocation of an additional licence under subsection (6), (7), (8) or (9), any attempt by any person to transfer either:
(a) the additional licence; or (b) the parent licence concerned;
is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.
Section 37 restrictions apply
(24) This section has effect subject to section 37.
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Allocation of licences Division 1
Section 38C
Broadcasting Services Act 1992 67
Jointly owned company
(25) For the purposes of this section, a company (the first company) is jointly owned by 2 other companies if, and only if, each share in the first company is beneficially owned by either or both of those other companies.
38C Commercial television broadcasting licences—services provided with the use of a satellite
(1) The following table has effect:
Licence areas and eligible joint venturers Column 1 Column 2 Column 3
Item Licence area for a commercial television broadcasting licence allocated, or to be allocated, under this section
Description of the licence area
Eligible joint venturers for the licence area
1 South Eastern Australia TV3
The area consisting of New South Wales, Victoria, South Australia, Tasmania, the Australian Capital Territory, Norfolk Island and the Jervis Bay Territory.
The commercial television broadcasting licensees for the following licence areas: (a) Remote Central and
Eastern Australia TV1;
(b) Remote Central and Eastern Australia TV2;
(c) Mt Isa TV1. 2 Northern Australia
TV3 The area consisting of Queensland, the Northern Territory and the Coral Sea Islands Territory.
The commercial television broadcasting licensees for the following licence areas: (a) Remote Central and
Eastern Australia
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 1 Allocation of licences
Section 38C
68 Broadcasting Services Act 1992
Licence areas and eligible joint venturers Column 1 Column 2 Column 3
Item Licence area for a commercial television broadcasting licence allocated, or to be allocated, under this section
Description of the licence area
Eligible joint venturers for the licence area
TV1; (b) Remote Central and
Eastern Australia TV2;
(c) Mt Isa TV1. 3 Western Australia TV3 The area consisting of
Western Australia, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.
The commercial television broadcasting licensees for the following licence areas: (a) Remote and
Regional WA TV1; (b) Western Zone TV1; (c) Kalgoorlie TV1; (d) Geraldton TV1; (e) South West and
Great Southern TV1.
Joint-venture company
(2) Two or more of the eligible joint venturers for a licence area specified in column 1 of the table in subsection (1) may, during whichever of the following periods is applicable:
(a) in the case of the South Eastern Australia TV3 licence area— the 28-day period beginning at the commencement of this section;
(b) otherwise—the period: (i) beginning at the commencement of this section; and
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Allocation of licences Division 1
Section 38C
Broadcasting Services Act 1992 69
(ii) ending 6 months before the start of the earliest applicable terrestrial digital television switch-over date for the licence area;
give the ACMA a joint written notice stating that: (c) a company specified in the notice (the joint-venture
company) will apply under subsection (3) for a commercial television broadcasting licence for the licence area; and
(d) the joint-venture company is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital.
Application by joint-venture company
(3) If a notice is given under subsection (2) in relation to a licence area specified in column 1 of the table in subsection (1), the joint-venture company must:
(a) apply in writing to the ACMA for a commercial television broadcasting licence for the licence area; and
(b) do so within 28 days after the notice is given.
Allocation of licence to joint-venture company
(4) If the ACMA receives an application under subsection (3) that relates to a licence area, the ACMA must:
(a) allocate a commercial television broadcasting licence to the joint-venture company for the licence area; and
(b) do so within 28 days after the application is received.
(5) Subsection (4) has effect subject to section 37.
Special purpose company
(6) If no notice is given under subsection (2) in relation to a licence area specified in column 1 of the table in subsection (1), an eligible joint venturer for the licence area may, within 28 days after the end of whichever of the periods mentioned in paragraphs (2)(a) and (b) is applicable, give the ACMA a written notice stating that:
(a) a company specified in the notice (the special purpose company) will apply under subsection (7) for a commercial television broadcasting licence for the licence area; and
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 1 Allocation of licences
Section 38C
70 Broadcasting Services Act 1992
(b) the special purpose company is a wholly-owned subsidiary of the eligible joint venturer; and
(c) the special purpose company is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital.
Application by special purpose company
(7) If a notice is given under subsection (6), the special purpose company must:
(a) apply in writing to the ACMA for a commercial television broadcasting licence for the licence area specified in the notice; and
(b) do so within 28 days after the notice is given.
Allocation of licence to special purpose company
(8) If only one special purpose company makes an application under subsection (7) in relation to a licence area specified in column 1 of the table in subsection (1), the ACMA must:
(a) allocate a commercial television broadcasting licence to the special purpose company for the licence area; and
(b) do so within 28 days after the application is received.
(9) If the ACMA receives applications from 2 or more special purpose companies under subsection (7) in relation to a licence area specified in column 1 of the table in subsection (1), the ACMA must allocate a commercial television broadcasting licence to one of those companies for the licence area in accordance with a price-based system determined under subsection (11).
(10) Subsections (8) and (9) have effect subject to section 37.
Price-based system for allocating licences where 2 or more applications have been received
(11) The ACMA may, by written instrument, determine a price-based system for allocating commercial television broadcasting licences under subsection (9).
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Allocation of licences Division 1
Section 38C
Broadcasting Services Act 1992 71
(12) A instrument made under subsection (11) is not a legislative instrument.
(13) The Minister may, by legislative instrument, give specific directions to the ACMA in relation to the power conferred by subsection (11). Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.
(14) If a commercial television broadcasting licence is allocated under subsection (9), the ACMA must, unless the price-based allocation system adopted was public, publish in the Gazette:
(a) the name of the successful applicant; and (b) the amount that the applicant agreed to pay to the
Commonwealth for the allocation of the licence.
Cancellation of licence—services not provided
(15) If: (a) the licensee of a licence allocated under this section is
contravening a licence condition set out in: (i) clause 7B of Schedule 2; or
(ii) clause 7C of Schedule 2; and (b) the ACMA is satisfied that the contravention is not due to:
(i) technical circumstances that are beyond the licensee’s control; or
(ii) unforeseen circumstances that are beyond the licensee’s control; or
(iii) circumstances specified in the regulations; and (c) the ACMA gives the licensee a written notice warning the
licensee that, if the contravention continues for 30 days, the licence may be cancelled; and
(d) 30 days pass after the notice is given, and the contravention continues;
the ACMA must, by written notice given to the licensee, cancel the licence.
(16) The cancellation takes effect: (a) when the notice of cancellation is given to the licensee; or
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 1 Allocation of licences
Section 38C
72 Broadcasting Services Act 1992
(b) if a later time is specified in the notice of cancellation—at that later time.
Allocation of licence after cancellation etc.
(17) If: (a) the ACMA gives a notice under subsection (15) to a licensee,
cancelling the licence for a licence area; or (b) both:
(i) no notice is given under subsection (2) in relation to a licence area; and
(ii) no notice is given under subsection (6) in relation to a licence area; or
(c) a joint-venture company for a licence area contravenes subsection (3); or
(d) both: (i) there is only one special purpose company for a licence
area; and (ii) the special purpose company contravenes
subsection (7); or (e) both:
(i) there are 2 or more special purpose companies for a licence area; and
(ii) each of those special purpose companies contravene subsection (7);
the ACMA must, within 45 days after: (f) if paragraph (a) applies—the giving of the notice; or (g) if paragraph (b) applies—the the last day on which a notice
could have been given under subsection (6) in relation to the licence area; or
(h) if paragraph (c), (d) or (e) applies—the contravention; advertise, in a manner determined by the ACMA, for applications for a licence to be allocated under subsection (23) for the licence area.
(18) Before commencing to advertise under subsection (17), the ACMA must, by legislative instrument, determine the eligibility
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Allocation of licences Division 1
Section 38C
Broadcasting Services Act 1992 73
requirements that must be met by persons applying for a licence in response to such an advertisement.
(19) The eligibility requirements determined under subsection (18) must include that the applicant has the capacity to provide the services that the licensee will be required to provide under clauses 7B, 7C and 7D of Schedule 2. This subsection does not limit other eligibility requirements that may be determined under subsection (18).
(20) The Minister may, by legislative instrument, direct the ACMA about the exercise of its powers under subsection (18).
(21) The ACMA must include in an advertisement under subsection (17):
(a) a description of the matter mentioned in the applicable paragraph of subsection (17); and
(b) the date on or before which applications must be received by the ACMA (the applications closing date); and
(c) a statement specifying how details of: (i) the licence area for the licence; and
(ii) the eligibility requirements; and (iii) the conditions that will apply to the licence; may be obtained.
(22) The applications closing date must be the 90th day after the day of publication of the first advertisement under subsection (17) that describes the contravention or cancellation concerned.
(23) If: (a) in response to an advertisement under subsection (17), the
ACMA receives one or more applications for a licence; and (b) the applications were received on or before the applications
closing date specified in the advertisement; and (c) the ACMA is satisfied that one or more of the applicants
meets the eligibility requirements; the ACMA must:
(d) allocate the licence to one of the applicants referred to in paragraph (c); and
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 1 Allocation of licences
Section 39
74 Broadcasting Services Act 1992
(e) do so within 90 days after the applications closing date.
(24) Subsection (23) has effect subject to section 37.
Restrictions on transfer of licences
(25) During the period of 2 years after the date of allocation of a licence under this section, any attempt by any person to transfer the licence is of no effect.
Definitions
(26) In this section:
applicable terrestrial digital television switch-over date has the same meaning as in clause 7H of Schedule 2.
wholly-owned subsidiary has the same meaning as in the Corporations Act 2001.
39 Additional commercial radio licences in single markets
Conditions for allocation of additional licence
(1) If: (a) a particular licence area is the licence area of only one
commercial radio broadcasting licence (the parent licence) that is in force; and
(b) a service is being provided under the parent licence; and (c) the licence area for the parent licence does not have an
excessive overlap area, as determined under subsection (5); and
(d) the licensee requests the ACMA, in writing, to allocate to the licensee, for the same licence area, another commercial radio broadcasting licence that is a broadcasting services bands licence; and
(e) in the opinion of the ACMA, suitable broadcasting services bands spectrum is available for providing another commercial radio broadcasting service in the same licence area;
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Allocation of licences Division 1
Section 39
Broadcasting Services Act 1992 75
the ACMA must allocate an additional licence to the applicant for the same licence area as soon as practicable.
Time limit for applications
(2) An application under subsection (1) must be made within 60 days after:
(a) the commencement of this section; or (b) the time when paragraphs (1)(a), (b) and (c) are first satisfied
in relation to the parent licence; whichever is later.
(3) If the conditions in paragraphs (1)(a), (b), (c) and (e) are not all satisfied at the time when the application is made, but at a later time they are all satisfied, then the ACMA is under an obligation at that later time to allocate the additional licence (unless the application has been withdrawn).
Matters that ACMA must take into account
(4) The matters that the ACMA must take into account in forming an opinion for the purposes of paragraph (1)(e) include the following:
(a) any relevant plan under section 25; (b) any relevant plan under section 26; (c) any relevant capacity that has been reserved under section 31.
Excessive overlap area
(5) The licence area for the parent licence has an excessive overlap area if:
(a) more than 30% of the licence area population of the licence area of the parent licence is attributable to an area that overlaps with the licence area of another commercial radio broadcasting licence; and
(b) at least one of the following situations exists: (i) more than 30% of the licence area population of the
licence area of that other licence is also attributable to the area that overlaps with the licence area of the parent licence;
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 1 Allocation of licences
Section 39
76 Broadcasting Services Act 1992
(ii) more than one commercial radio broadcasting licence is in force with the same licence area as that other licence.
Technical specifications for additional licence
(6) The ACMA must make a determination in writing setting out the technical specifications that apply to the additional licence. The ACMA is not required to make the determination if a plan under section 26 applies to the licence area of the additional licence.
(7) For the purposes of this Act and section 109 of the Radiocommunications Act 1992, the technical specifications are taken to have been determined under section 26 of this Act.
Fee for additional licence
(8) On allocation of the additional licence, the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.
Licence conditions
(9) On the allocation of the additional licence, it becomes a condition of both the parent licence and the additional licence that the licensee will continue to provide services under those licences for at least 2 years after the date of allocation of the additional licence.
Restrictions on transfer of licences
(10) During the period of 2 years after the date of allocation of the additional licence, any attempt by any person to transfer either the parent licence or the additional licence is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.
Section 37 restrictions apply
(11) This section has effect subject to section 37.
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Allocation of licences Division 1
Section 40
Broadcasting Services Act 1992 77
Section 29 does not apply in some cases
(12) If the licence area of the parent licence is not provided for under a licence area plan under section 26, then section 29 does not apply to the allocation of the additional licence.
40 Allocation of other licences
(1) The ACMA may allocate to a person, on application in writing by the person, a commercial television broadcasting licence or a commercial radio broadcasting licence that is not a licence referred to in subsection 36(1).
(1A) Licences under subsection (1) are to be allocated on the basis of one licence per service.
(2) Before allocating a licence referred to in subsection (1), the ACMA is to designate a particular area in Australia as the licence area of the licence.
(3) 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.
(4) If the ACMA makes a decision under subsection (1) or (2), the ACMA must publish in the Gazette details of the allocation or the designation of a licence area.
Referral of application to the Minister
(5) Before allocating a commercial television broadcasting licence under subsection (1), the ACMA must refer the application to the Minister.
(6) If an application for a commercial television broadcasting licence is referred to the Minister under subsection (5), the ACMA must not make a decision about the application until the Minister:
(a) gives a direction under subsection (7) in relation to the application; or
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 1 Allocation of licences
Section 40
78 Broadcasting Services Act 1992
(b) gives a notice under subsection (9) in relation to the application.
(7) If: (a) an application for a commercial television broadcasting
licence is referred to the Minister under subsection (5); and (b) the Minister is of the opinion that the proposed commercial
television broadcasting service is likely to be contrary to the public interest;
the Minister must, by written notice given to the ACMA, direct the ACMA not to allocate the licence to the applicant.
(8) The ACMA must comply with a direction under subsection (7).
(9) If: (a) an application for a commercial television broadcasting
licence is referred to the Minister under subsection (5); and (b) the Minister is not of the opinion that the proposed
commercial television broadcasting service is likely to be contrary to the public interest;
the Minister must, by written notice given to the ACMA, inform the ACMA that he or she has no objection to the allocation of the licence to the applicant.
Minister may request additional information
(10) If an application is referred to the Minister under subsection (5), and the Minister considers that additional information is required before the Minister can decide whether to:
(a) give a direction under subsection (7) in relation to the application; or
(b) give a notice under subsection (9) in relation to the application;
the Minister may, by written notice given to the applicant within 30 days after the day on which the application is referred to the Minister, request the applicant to provide that information.
(11) If the Minister requests additional information under subsection (10), the Minister must give the ACMA a copy of the request.
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Allocation of licences Division 1
Section 41
Broadcasting Services Act 1992 79
Decision to be made within 60 days
(12) If the Minister does not, within 60 days after the day on which: (a) an application is referred to the Minister under
subsection (5); or (b) if the Minister requests additional information under
subsection (10)—that additional information is received; do either of the following:
(c) give a direction under subsection (7) in relation to the application;
(d) give a notice under subsection (9) in relation to the application;
then the Minister is taken to have given a notice under subsection (9) in relation to the application.
Licence condition
(13) If the ACMA allocates a commercial television broadcasting licence under subsection (1), the licence is subject to the condition that the licensee may only provide the commercial television broadcasting service concerned in digital mode (within the meaning of Schedule 4).
41 When persons are regarded as suitable
(1) For the purposes of this Part, a company is a suitable licensee or a suitable applicant for a licence if the ACMA has not decided that subsection (2) applies to the company.
(2) The ACMA may, if it is satisfied that allowing a particular company to provide or continue to provide commercial broadcasting services under a 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.
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 1 Allocation of licences
Section 41
80 Broadcasting Services Act 1992
(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
licence were allocated to the applicant, in a position to control 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).
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Services authorised by licences Division 2
Section 41A
Broadcasting Services Act 1992 81
Division 2—Services authorised by licences
41A Services authorised by commercial television broadcasting licences before 1 January 2009
Licences in force immediately before 1 January 2007
(1) If: (a) a commercial television broadcasting licence for a licence
area was in force immediately before 1 January 2007; and (b) the licence authorised the licensee to provide a commercial
television broadcasting service (the core commercial television broadcasting service) in the licence area;
the licence is taken to authorise the licensee to provide the following 2 services in the licence area:
(c) the core commercial television broadcasting service; (d) a HDTV multi-channelled commercial television
broadcasting service; during the period ending immediately before 1 January 2009.
Licences allocated on or after 1 January 2007
(2) If a commercial television broadcasting licence for a licence area is allocated on or after 1 January 2007 but before 1 January 2009, the licence authorises the licensee to provide the following 2 services in the licence area:
(a) a commercial television broadcasting service (the core commercial television broadcasting service) transmitted in SDTV digital mode;
(b) a HDTV multi-channelled commercial television broadcasting service;
during the period ending immediately before 1 January 2009.
Licences allocated under subsection 40(1)
(3) This section does not apply to a commercial television broadcasting licence allocated under subsection 40(1).
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 2 Services authorised by licences
Section 41B
82 Broadcasting Services Act 1992
Definitions
(4) In this section:
HDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
SDTV digital mode has the same meaning as in Schedule 4.
41B Services authorised by commercial television broadcasting licences during so much of the simulcast period etc. as occurs on or after 1 January 2009
Licences in force immediately before 1 January 2009—general
(1) If: (a) a commercial television broadcasting licence for a licence
area was in force immediately before 1 January 2009; and (b) the licence authorised the licensee to provide the following
2 services in the licence area: (i) the core commercial television broadcasting service;
(ii) a HDTV multi-channelled commercial television broadcasting service;
the licence is taken to authorise the licensee to provide the following 3 services in the licence area:
(c) the core commercial television broadcasting service; (d) the HDTV multi-channelled commercial television
broadcasting service; (e) a SDTV multi-channelled commercial television
broadcasting service; during the simulcast period, or the simulcast-equivalent period, as the case may be, for the licence area.
(1A) Subsection (1) does not apply, after the commencement of section 38C, to:
(a) an eligible parent licence; or (b) an eligible section 38A licence.
Note 1: For eligible parent licence, see subsection (2E).
Note 2: For eligible section 38A licence, see subsection (2E).
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Services authorised by licences Division 2
Section 41B
Broadcasting Services Act 1992 83
(1B) Subsection (1) does not apply to a remote area licence.
Licences allocated on or after 1 January 2009
(2) If a commercial television broadcasting licence for a licence area is allocated on or after 1 January 2009 but before the end of whichever of the following periods is applicable:
(a) the simulcast period for the licence area; (b) the simulcast-equivalent period for the licence area;
the licence authorises the licensee to provide the following 3 services in the licence area:
(c) a HDTV multi-channelled commercial television broadcasting service;
(d) 2 SDTV multi-channelled commercial television broadcasting services;
during the simulcast period, or the simulcast-equivalent period, as the case may be, for the licence area.
(2A) Subsection (2) does not apply, after the commencement of section 38C, to:
(a) an eligible parent licence; or (aa) an eligible section 38A licence; or (b) an eligible section 38B licence.
Note 1: For eligible parent licence, see subsection (2E).
Note 1A: For eligible section 38A licence, see subsection (2E).
Note 2: For eligible section 38B licence, see subsection (2E).
(2AA) Subsection (2) does not apply to a remote area licence.
Eligible parent licences in force immediately before 1 January 2009
(2B) If: (a) an eligible parent licence for a licence area was in force
immediately before 1 January 2009; and (b) the eligible parent licence authorised the licensee to provide
the following 3 services in the licence area: (i) the core commercial television broadcasting service;
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 2 Services authorised by licences
Section 41B
84 Broadcasting Services Act 1992
(ii) a HDTV multi-channelled commercial television broadcasting service;
(iii) a SDTV multi-channelled commercial television broadcasting service;
the eligible parent licence is taken to authorise the licensee to provide the following services in the licence area:
(c) the core commercial television broadcasting service; (d) either:
(i) a HDTV multi-channelled commercial television broadcasting service and a SDTV multi-channelled commercial television broadcasting service; or
(ii) 2 SDTV multi-channelled commercial television broadcasting services;
during the simulcast period, or the simulcast-equivalent period, as the case may be, for the licence area. Note: For eligible parent licence, see subsection (2E).
Eligible parent licences allocated on or after 1 January 2009
(2C) If an eligible parent licence for a licence area is allocated on or after 1 January 2009 but before the end of whichever of the following periods is applicable:
(a) the simulcast period for the licence area; (b) the simulcast-equivalent period for the licence area;
the eligible parent licence is taken to authorise the licensee to provide:
(c) the following services in the licence area: (i) a HDTV multi-channelled commercial television
broadcasting service; (ii) 2 SDTV multi-channelled commercial television
broadcasting services; or (d) 3 SDTV multi-channelled commercial television
broadcasting services in the licence area; during the simulcast period, or the simulcast-equivalent period, as the case may be, for the licence area. Note: For eligible parent licence, see subsection (2E).
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Services authorised by licences Division 2
Section 41B
Broadcasting Services Act 1992 85
Eligible section 38A licences in force immediately before 1 January 2009
(2CA) If: (a) an eligible section 38A licence for a licence area was in force
immediately before 1 January 2009; and (b) the eligible section 38A licence authorised the licensee to
provide the following 3 services in the licence area: (i) the core commercial television broadcasting service;
(ii) a HDTV multi-channelled commercial television broadcasting service;
(iii) a SDTV multi-channelled commercial television broadcasting service;
the eligible section 38A licence is taken to authorise the licensee to provide the following services in the licence area:
(c) the core commercial television broadcasting service; (d) either:
(i) a HDTV multi-channelled commercial television broadcasting service and a SDTV multi-channelled commercial television broadcasting service; or
(ii) 2 SDTV multi-channelled commercial television broadcasting services;
during the simulcast period, or the simulcast-equivalent period, as the case may be, for the licence area. Note: For eligible section 38A licence, see subsection (2E).
Eligible section 38A licences allocated on or after 1 January 2009
(2CB) If an eligible section 38A licence for a licence area is allocated on or after 1 January 2009 but before the end of whichever of the following periods is applicable:
(a) the simulcast period for the licence area; (b) the simulcast-equivalent period for the licence area;
the eligible section 38A licence is taken to authorise the licensee to provide:
(c) the following services in the licence area: (i) a HDTV multi-channelled commercial television
broadcasting service;
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 2 Services authorised by licences
Section 41B
86 Broadcasting Services Act 1992
(ii) 2 SDTV multi-channelled commercial television broadcasting services; or
(d) 3 SDTV multi-channelled commercial television broadcasting services in the licence area;
during the simulcast period, or the simulcast-equivalent period, as the case may be, for the licence area. Note: For eligible section 38A licence, see subsection (2E).
Eligible section 38B licences
(2D) If an eligible section 38B licence for a licence area is allocated before the end of whichever of the following periods is applicable:
(a) the simulcast period for the licence area; (b) the simulcast-equivalent period for the licence area;
the eligible section 38B licence authorises the licensee to provide: (c) the following services in the licence area:
(i) a HDTV multi-channelled commercial television broadcasting service;
(ii) 2 SDTV multi-channelled commercial television broadcasting services; or
(d) 3 SDTV multi-channelled commercial television broadcasting services in the licence area;
during the simulcast period, or the simulcast-equivalent period, as the case may be, for the licence area. Note: For eligible section 38B licence, see subsection (2E).
Remote area licences in force immediately before 1 January 2009
(2DA) If a remote area licence for a licence area was in force immediately before 1 January 2009, the remote area licence is taken to authorise the licensee to provide the following services in the licence area:
(a) the core commercial television broadcasting service; (b) either:
(i) a HDTV multi-channelled commercial television broadcasting service and a SDTV multi-channelled commercial television broadcasting service; or
(ii) 2 SDTV multi-channelled commercial television broadcasting services;
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Services authorised by licences Division 2
Section 41B
Broadcasting Services Act 1992 87
during the simulcast period, or the simulcast-equivalent period, as the case may be, for the licence area.
Remote area licences allocated on or after 1 January 2009
(2DB) If a remote area licence for a licence area is allocated on or after 1 January 2009 but before the end of whichever of the following periods is applicable:
(a) the simulcast period for the licence area; (b) the simulcast-equivalent period for the licence area;
the remote area licence authorises the licensee to provide: (c) the following services in the licence area:
(i) a HDTV multi-channelled commercial television broadcasting service;
(ii) 2 SDTV multi-channelled commercial television broadcasting services; or
(d) 3 SDTV multi-channelled commercial television broadcasting services in the licence area;
during the simulcast period, or the simulcast-equivalent period, as the case may be, for the licence area.
Eligible parent licence, eligible section 38A licence and eligible section 38B licence
(2E) For the purposes of this section, if: (a) a person (the original licensee) is or was the licensee of a
commercial television broadcasting licence (other than a commercial television broadcasting licence allocated under section 38A or subsection 38B(6), (7), (8) or (9)); and
(b) the original licensee is or was allocated an additional commercial television broadcasting licence under section 38A; and
(c) after the commencement of section 38C, the original licensee is allocated an additional commercial television broadcasting licence under subsection 38B(6), (7), (8) or (9); and
(d) at a particular time, the licences mentioned in paragraphs (a), (b) and (c) are held by the same person (whether or not that person is the original licensee);
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 2 Services authorised by licences
Section 41C
88 Broadcasting Services Act 1992
then, at that time: (e) the licence mentioned in paragraph (a) is an eligible parent
licence; and (f) the licence mentioned in paragraph (b) is an eligible
section 38A licence; and (g) the licence mentioned in paragraph (c) is an eligible
section 38B licence.
Licences allocated under section 38C or subsection 40(1)
(3) This section does not apply to a commercial television broadcasting licence allocated under section 38C or subsection 40(1).
Definitions
(4) In this section:
HDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
remote area licence means a commercial television broadcasting licence for a remote licence area (within the meaning of Schedule 4).
SDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
simulcast-equivalent period has the same meaning as in Schedule 4.
simulcast period has the same meaning as in Schedule 4.
41C Services authorised by commercial television broadcasting licences after the end of the simulcast period etc.
Licences in force immediately before the end of the simulcast period etc.
(1) If a commercial television broadcasting licence for a licence area was in force immediately before the end of whichever of the following periods is applicable:
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Services authorised by licences Division 2
Section 41C
Broadcasting Services Act 1992 89
(a) the simulcast period for the licence area; (b) the simulcast-equivalent period for the licence area;
then, after the end of the applicable period, the licence is taken to authorise the licensee to provide the following services in the licence area:
(c) one or more HDTV multi-channelled commercial television broadcasting services;
(d) one or more SDTV multi-channelled commercial television broadcasting services.
Licences allocated after the end of the simulcast period etc.
(2) If a commercial television broadcasting licence for a licence area is allocated after the end of whichever of the following periods is applicable:
(a) the simulcast period for the licence area; (b) the simulcast-equivalent period for the licence area;
the licence authorises the licensee to provide the following services in the licence area:
(c) one or more HDTV multi-channelled commercial television broadcasting services;
(d) one or more SDTV multi-channelled commercial television broadcasting services.
Licences allocated under section 38C or subsection 40(1)
(3) This section does not apply to a commercial television broadcasting licence allocated under section 38C or subsection 40(1).
Definitions
(4) In this section:
HDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
SDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 2 Services authorised by licences
Section 41CA
90 Broadcasting Services Act 1992
simulcast-equivalent period has the same meaning as in Schedule 4.
simulcast period has the same meaning as in Schedule 4.
41CA Services authorised by commercial television broadcasting licences allocated under section 38C
Authorised services
(1) A licence allocated under section 38C authorises the licensee to provide the following commercial television broadcasting services in the licence area:
(a) if a commercial television broadcasting licensee (a related terrestrial licensee) for a related terrestrial licence area provides a HDTV multi-channelled commercial television broadcasting service in the related terrestrial licence area—a HDTV multi-channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;
(b) if: (i) a commercial television broadcasting licensee (a related
terrestrial licensee) for a related terrestrial licence area provides a SDTV multi-channelled commercial television broadcasting service in the related terrestrial licence area; and
(ii) the service is not the core/primary commercial television broadcasting service provided by the related terrestrial licensee;
a SDTV multi-channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;
(c) if: (i) a commercial television broadcasting licensee (a related
terrestrial licensee) for a related terrestrial licence area provides a SDTV multi-channelled commercial
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Services authorised by licences Division 2
Section 41CA
Broadcasting Services Act 1992 91
television broadcasting service in the related terrestrial licence area; and
(ii) the service is the core/primary commercial television broadcasting service provided by the related terrestrial licensee;
a commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;
(d) if a commercial television broadcasting licensee (a metropolitan licensee) for a metropolitan licence area provides a HDTV multi-channelled commercial television broadcasting service in the metropolitan licence area—a HDTV multi-channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;
(e) if: (i) a commercial television broadcasting licensee (a
metropolitan licensee) for a metropolitan licence area provides a SDTV multi-channelled commercial television broadcasting service in the metropolitan licence area; and
(ii) the service is not the core/primary commercial television broadcasting service provided by the metropolitan licensee;
a SDTV multi-channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;
(f) if: (i) a commercial television broadcasting licensee (a
metropolitan licensee) for a metropolitan licence area provides a SDTV multi-channelled commercial television broadcasting service in the metropolitan licence area; and
(ii) the service is the core/primary commercial television broadcasting service provided by the metropolitan licensee;
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 2 Services authorised by licences
Section 41CA
92 Broadcasting Services Act 1992
a commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;
(g) one or more SDTV multi-channelled commercial television broadcasting services the program content of which consists wholly or primarily of programs provided, or required to be provided, to the licensee under subsection 43AA(1).
Program content
(2) In determining, for the purposes of this section, whether the program content of a commercial television broadcasting service provided by a licensee in a licence area is the same, or substantially the same, as the program content of another commercial television broadcasting service:
(a) ignore the following: (i) advertising or sponsorship material (whether or not of a
commercial kind); (ii) a promotion for a television program or a television
broadcasting service; (iii) community information material or community
promotional material; (iv) a weather bulletin; (v) any other similar material; and
(b) ignore a news program; and (c) ignore any program the broadcasting of which in any
jurisdiction in the licence area could result in the licensee: (i) committing an offence; or
(ii) becoming liable to a civil penalty; or (iii) breaching an order or direction of a court; or (iv) being in contempt of court; and
(d) ignore a program broadcast in circumstances specified in the regulations.
(3) In determining, for the purposes of: (a) paragraph (1)(c); or (b) paragraph (1)(f);
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Services authorised by licences Division 2
Section 41CA
Broadcasting Services Act 1992 93
whether the program content of a commercial television broadcasting service provided by a licensee in a licence area is the same, or substantially the same, as the program content of another commercial television broadcasting service, assume that a program that provides coverage of an anti-siphoning event is the same as a program that provides coverage of another anti-siphoning event.
(4) Subsection (3) does not limit subsection (2).
SDTV multi-channelled commercial television broadcasting service
(5) For the purposes of subsection (1), assume that paragraph 5A(1)(d) of Schedule 4 had not been enacted.
Providing an authorised service on Norfolk Island
(5A) A person authorised by a licence allocated under section 38C to provide a commercial television broadcasting service in a licence area including Norfolk Island may provide the service despite a law of Norfolk Island about broadcasting services.
Definitions
(6) In this section:
HDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:
(a) New South Wales; or (b) Victoria; or (c) Queensland; or (d) Western Australia; or (e) South Australia;
but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.
related terrestrial licence area:
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 2 Services authorised by licences
Section 41D
94 Broadcasting Services Act 1992
(a) in relation to a licence allocated under section 38C for the South Eastern Australia TV3 licence area—means a licence area mentioned in column 3 of item 1 of the table in subsection 38C(1); or
(b) in relation to a licence allocated under section 38C for the Northern Australia TV3 licence area—means a licence area mentioned in column 3 of item 2 of the table in subsection 38C(1); or
(c) in relation to a licence allocated under section 38C for the Western Australia TV3 licence area—means a licence area mentioned in column 3 of item 3 of the table in subsection 38C(1).
SDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
41D Services authorised by commercial radio broadcasting licences
Licences in force immediately before the commencement of this section
(1) If: (a) a commercial radio broadcasting licence was in force
immediately before the commencement of this section; and (b) the licence authorised the licensee to provide an analog
commercial 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.
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Services authorised by licences Division 2
Section 41D
Broadcasting Services Act 1992 95
Licences allocated on or after the commencement of this section
(2) If: (a) a commercial 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 commercial 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 commercial 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 commercial radio broadcasting service in the licence area;
then, on and 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 commercial radio broadcasting service; (d) one or more digital commercial radio broadcasting services.
Licences allocated on or after digital radio start-up day for the licence area
(4) If: (a) a commercial 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
commercial radio broadcasting service in the licence area;
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 2 Services authorised by licences
Section 41D
96 Broadcasting Services Act 1992
the licence is taken to authorise the licensee to provide that service in the licence area.
(5) If: (a) a commercial 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
commercial radio broadcasting services in the licence area; the licence is taken to authorise the licensee to provide one or more digital commercial radio broadcasting services in the licence area.
Section 35D
(6) This section has effect subject to section 35D.
Subsection 40(1) licences
(7) This section does not apply to a commercial radio broadcasting licence allocated under subsection 40(1).
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Licence conditions Division 3
Section 42
Broadcasting Services Act 1992 97
Division 3—Licence conditions
42 Conditions of commercial broadcasting licences
(1) Each commercial television broadcasting licence is subject to: (a) the conditions set out in Division 1 of Part 3 of Schedule 2;
and (b) such other conditions as are imposed under section 43.
(1A) Each commercial television broadcasting licence allocated under section 38C is also subject to the conditions set out in Division 2 of Part 3 of Schedule 2.
(2) Each commercial radio broadcasting licence is subject to: (a) the conditions set out in Part 4 of Schedule 2; and (b) such other conditions as are imposed under section 43.
43 ACMA may impose additional conditions
(1) The ACMA may, by notice in writing given to a commercial television broadcasting licensee or a commercial radio 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:
(a) give to the licensee written notice of its intention; and (b) give to the licensee 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 3 or 4 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.
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 3 Licence conditions
Section 43A
98 Broadcasting Services Act 1992
(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 3 or 4 of Schedule 2.
43A Material of local significance—regional aggregated commercial television broadcasting licences
(1) The ACMA must ensure that, at all times on and after 1 January 2008, there is in force under section 43 a condition that has the effect of requiring the licensee of a regional aggregated commercial television broadcasting licence to broadcast to each local area, during such periods as are specified in the condition, at least a minimum level of material of local significance.
(2) For the purposes of subsection (1), a regional aggregated commercial television broadcasting licence is a commercial television broadcasting licence for any of the following licence areas:
(a) Northern New South Wales; (b) Southern New South Wales; (c) Regional Victoria; (d) Eastern Victoria; (e) Western Victoria; (f) Regional Queensland; (g) Tasmania.
(3) The condition must define local area and material of local significance for the purposes of the condition. The definition of material of local significance must be broad enough to cover news that relates directly to the local area concerned.
(4) To avoid doubt, this section does not: (a) prevent the condition from setting out different requirements
for different types of material; or (b) prevent the condition from specifying periods that recur (for
example, the hours between 7 am and 10 am Monday to Friday); or
(c) prevent the condition from setting out different requirements for different periods; or
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Licence conditions Division 3
Section 43AA
Broadcasting Services Act 1992 99
(d) create any obligations under subsection 43(2) that would not exist apart from this section.
(5) Subsection 43(5) does not apply to the condition.
(6) This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.
43AA Local news to be provided to section 38C licensees by regional commercial television broadcasting licensees
(1) A commercial television broadcasting licence for a regional licence area is subject to the condition that, if:
(a) the licensee broadcasts a local news program in the licence area; and
(aa) the licensee has not previously broadcast the program in the licence area; and
(b) the licence area is wholly or partly included in the licence area of a licence allocated under section 38C;
the licensee of the regional commercial television broadcasting licence must:
(c) provide the local news program to the licensee of the section 38C licence for broadcast by the section 38C licensee; and
(d) do so: (i) simultaneously with the broadcast of the program by the
licensee of the regional commercial television broadcasting licence; or
(ii) as soon as practicable after the broadcast of the program by the licensee of the regional commercial television broadcasting licence.
(2) A program must be provided under subsection (1) by transmitting it in digital mode (within the meaning of Schedule 4).
(3) If: (a) apart from this subsection, a commercial television
broadcasting licensee for a regional licence area (the regional licensee) is required by subsection (1) to provide a program
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 3 Licence conditions
Section 43AA
100 Broadcasting Services Act 1992
to the licensee of a commercial television broadcasting licence allocated under section 38C; and
(b) the regional licensee believes, on reasonable grounds, that the broadcasting of a part of the program in any jurisdiction in the licence area of the section 38C licence could result in the section 38C licensee:
(i) committing an offence; or (ii) becoming liable to a civil penalty; or
(iii) breaching an order or direction of a court; or (iv) being in contempt of court;
subsection (1) has effect as if the program did not include that part of the program.
(3A) If: (a) apart from this subsection, a commercial television
broadcasting licensee for a regional licence area (the regional licensee) is required by subsection (1) to provide a program to the licensee of a commercial television broadcasting licence allocated under section 38C; and
(b) the regional licensee believes, on reasonable grounds, that the broadcasting of the program in any jurisdiction in the licence area of the section 38C licence could result in the section 38C licensee:
(i) committing an offence; or (ii) becoming liable to a civil penalty; or
(iii) breaching an order or direction of a court; or (iv) being in contempt of court;
subsection (1) does not apply to the program.
(3AA) Subsection (1) does not require a licensee to provide a program to the licensee of a section 38C licence before the start date for the licence area of the section 38C licence.
(3B) A commercial television broadcasting licence for a regional licence area is subject to the condition that, if:
(a) the licensee broadcasts a local news program in the licence area on 2 or more occasions; and
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Licence conditions Division 3
Section 43AA
Broadcasting Services Act 1992 101
(b) the licence area is wholly or partly included in the licence area of a licence allocated under section 38C;
the licensee of the regional commercial television broadcasting licence will take reasonable steps to ensure that the licensee of the regional commercial television broadcasting licence does not, on more than one occasion, provide the program to the section 38C licensee for broadcast by the section 38C licensee.
(6) This section does not apply to a commercial television broadcasting licence allocated under subsection 40(1).
(7) In this section:
local news program means: (a) a program that consists solely of local news and/or local
weather information; or (b) a program:
(i) that consists primarily of local news and/or local weather information; and
(ii) the remainder of which consists of other news and/or other weather information;
but does not include: (c) a short segment, or a headline update, that is broadcast for
the sole or primary purpose of promoting another program; or
(d) a short segment, or a headline update, that repeats news content that has previously been broadcast by the licensee concerned.
metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:
(a) New South Wales; or (b) Victoria; or (c) Queensland; or (d) Western Australia; or (e) South Australia;
but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 3 Licence conditions
Section 43AB
102 Broadcasting Services Act 1992
regional licence area means a licence area that is not a metropolitan licence area, but does not include:
(a) the licence area of a commercial television broadcasting licence allocated under section 38C; or
(b) a licence area specified in column 3 of the table in subsection 38C(1).
start date, in relation to the licence area of a section 38C licence, has the same meaning as in Division 2 of Part 3 of Schedule 2.
43AB Commercial television programs to be provided to section 38C licensees by metropolitan commercial television broadcasting licensees
Programs to be provided by metropolitan licensees
(1) A commercial television broadcasting licence for a metropolitan licence area is subject to the condition that, if:
(a) the licensee (the metropolitan licensee) broadcasts a program in a metropolitan licence area on either of the following services (a metropolitan service):
(i) a HDTV multi-channelled commercial television broadcasting service;
(ii) a SDTV multi-channelled commercial television broadcasting service; and
(b) before the program is broadcast, a section 38C licensee requests the metropolitan licensee to provide the section 38C licensee with the programs broadcast on the metropolitan service;
the metropolitan licensee must: (c) provide the program to the section 38C licensee for broadcast
by the section 38C licensee; and (d) do so:
(i) simultaneously with the broadcast of that program on the metropolitan service; or
(ii) as soon as practicable after the broadcast of that program on the metropolitan service.
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Licence conditions Division 3
Section 43AB
Broadcasting Services Act 1992 103
HDTV digital mode or SDTV digital mode
(2) A program must be provided under subsection (1) by transmitting it:
(a) if subparagraph (1)(a)(i) applies—in HDTV digital mode (within the meaning of Schedule 4); or
(b) if subparagraph (1)(a)(ii) applies—in SDTV digital mode (within the meaning of Schedule 4).
SDTV multi-channelled commercial television broadcasting service
(3) For the purposes of subsection (1), assume that paragraph 5A(1)(d) of Schedule 4 had not been enacted.
Definitions
(4) In this section:
HDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:
(a) New South Wales; or (b) Victoria; or (c) Queensland; or (d) Western Australia; or (e) South Australia;
but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.
SDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
section 38C licensee means the licensee of a commercial television broadcasting licence allocated under section 38C.
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 3 Licence conditions
Section 43AC
104 Broadcasting Services Act 1992
43AC Commercial television programs to be provided to section 38C licensees by remote terrestrial licensees
Scope
(1) This section applies if the licence area of a commercial television broadcasting licence (the remote terrestrial licence) is a related terrestrial licence area of a licence allocated under section 38C.
Programs to be provided by remote terrestrial licensees
(2) The remote terrestrial licence is subject to the condition that, if the licensee broadcasts a program in the related terrestrial licence area on either of the following services (a remote terrestrial service):
(a) a HDTV multi-channelled commercial television broadcasting service;
(b) a SDTV multi-channelled commercial television broadcasting service;
the licensee of the remote terrestrial licence must: (c) provide the program to the section 38C licensee for broadcast
by the section 38C licensee; and (d) do so:
(i) simultaneously with the broadcast of that program on the remote terrestrial service; or
(ii) as soon as practicable after the broadcast of that program on the remote terrestrial service.
HDTV digital mode or SDTV digital mode
(3) A program must be provided under subsection (2) by transmitting it:
(a) if paragraph (2)(a) applies—in HDTV digital mode (within the meaning of Schedule 4); or
(b) if paragraph (2)(b) applies—in SDTV digital mode (within the meaning of Schedule 4).
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Licence conditions Division 3
Section 43AC
Broadcasting Services Act 1992 105
Start date
(3A) Subsection (2) does not require a licensee to provide a program to the licensee of a section 38C licence before the start date for the licence area of the section 38C licence.
SDTV multi-channelled commercial television broadcasting service
(4) For the purposes of subsection (2), assume that paragraph 5A(1)(d) of Schedule 4 had not been enacted.
Definitions
(5) In this section:
HDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
related terrestrial licence area: (a) in relation to a licence allocated under section 38C for the
South Eastern Australia TV3 licence area—means a licence area mentioned in column 3 of item 1 of the table in subsection 38C(1); or
(b) in relation to a licence allocated under section 38C for the Northern Australia TV3 licence area—means a licence area mentioned in column 3 of item 2 of the table in subsection 38C(1); or
(c) in relation to a licence allocated under section 38C for the Western Australia TV3 licence area—means a licence area mentioned in column 3 of item 3 of the table in subsection 38C(1).
SDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
section 38C licensee means the licensee of a commercial television broadcasting licence allocated under section 38C.
start date, in relation to the licence area of a section 38C licence, has the same meaning as in Division 2 of Part 3 of Schedule 2.
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 3 Licence conditions
Section 43AD
106 Broadcasting Services Act 1992
43AD Compensation for acquisition of property
(1) If the operation of: (b) section 43AA; or (c) section 43AB; or (d) section 43AC;
in relation to the provision of a program to the licensee of a commercial television broadcasting licence would result in an acquisition of property from a person otherwise than on just terms, the licensee is liable to pay a reasonable amount of compensation to the person.
(2) If the licensee and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the licensee of such reasonable amount of compensation as the court determines.
(3) 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.
43B Local presence—regional commercial radio broadcasting licences
(1A) The ACMA must ensure that, at all times after the commencement of Schedule 2 to the Broadcasting Services Amendment (Regional Commercial Radio) Act 2012, there is in force under section 43 a condition that has the effect of requiring that, if a trigger event for a regional commercial radio broadcasting licence occurs after the commencement of that Schedule, then, throughout the 24-month period beginning when the trigger event occurs, the licensee must maintain at least the existing level of local presence. Note: A trigger event cannot occur in relation to a regional commercial radio
broadcasting licence that was allocated under subsection 40(1): see section 50A.
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Licence conditions Division 3
Section 43C
Broadcasting Services Act 1992 107
(2) The condition must define existing level of local presence for the purposes of the condition.
(3) The definition must deal with: (a) staffing levels; and (b) studios and other production facilities.
(4) Subsection (3) does not limit subsection (2).
(4A) The condition does not apply to a regional commercial radio broadcasting licence that is:
(a) a remote area service radio licence; or (b) a regional racing service radio licence.
(5) To avoid doubt, this section does not create any obligations under subsection 43(2) that would not exist apart from this section.
(6) Subsection 43(5) does not apply to the condition.
(7) This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.
(8) The Minister may give the ACMA a written direction about the fulfilment of the obligation imposed on the ACMA by this section.
(9) The ACMA must comply with a direction under subsection (8).
(10) In this section:
regional commercial radio broadcasting licence has the same meaning as in Division 5C of Part 5.
staff includes individuals engaged as independent contractors.
trigger event has the same meaning as in Division 5C of Part 5.
43C Local content—regional commercial radio broadcasting licences
(1) The ACMA must ensure that, at all times on and after 1 January 2008, there is in force under section 43 a condition that has the effect of requiring the licensee of a regional commercial radio broadcasting licence to broadcast, during daytime hours each
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 3 Licence conditions
Section 43C
108 Broadcasting Services Act 1992
business day, at least the applicable number of hours of material of local significance.
(1A) A licence condition imposed as a result of subsection (1) does not require a licensee (the relevant licensee) to broadcast material:
(a) if: (i) the ACMA, by legislative instrument, specifies a period,
in relation to one or more specified regional commercial radio broadcasting licensees; and
(ii) the period does not exceed 5 weeks; and (iii) the licensees specified in the instrument consist of or
include the relevant licensee; on a business day during that period; or
(b) if the ACMA, by legislative instrument, specifies a period that does not exceed 5 weeks—on a business day during that period; or
(c) if neither paragraph (a) nor (b) applies—on a business day during the 5-week period beginning on the second Monday in December each year.
A period specified under paragraph (a) or (b) may be a recurring period.
Material of local significance
(2) The condition must define material of local significance for the purposes of the condition. If a regional commercial radio broadcasting licensee is required to comply with section 61CD, the definition of material of local significance must be broad enough to cover material that the licensee must broadcast in order to comply with that section.
Exclusion of certain licences
(2A) The condition does not apply to a regional commercial radio broadcasting licence that is:
(a) a remote area service radio licence; or (b) a regional racing service radio licence; or (c) allocated under subsection 40(1).
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Licence conditions Division 3
Section 43C
Broadcasting Services Act 1992 109
Applicable number
(3) For the purposes of the application of subsection (1) to a regional commercial radio broadcasting licence, the applicable number is:
(a) 4.5; or (b) if the Minister, by legislative instrument, declares that
another number is the applicable number for regional commercial radio broadcasting licences generally—the other number; or
(c) if: (i) the Minister, by legislative instrument, declares that
another number is the applicable number for a specified class of regional commercial radio broadcasting licences; and
(ii) the regional commercial radio broadcasting licence is included in that class;
the other number.
(4) Before 30 June 2007, the Minister must cause to be conducted a review of:
(a) whether: (i) a declaration should be made under paragraph (3)(b); or
(ii) one or more declarations should be made under subparagraph (3)(c)(i); and
(b) the number or numbers that should be specified in the declaration or declarations concerned; and
(c) in the case of a declaration or declarations under subparagraph (3)(c)(i)—the class or classes that should be specified in the declaration or declarations concerned.
(4A) The Minister must cause to be prepared a report of a review under subsection (4).
(4B) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the report.
(4C) Before the end of whichever of the following periods ends first:
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 3 Licence conditions
Section 43C
110 Broadcasting Services Act 1992
(a) the period of 15 sitting days of the House of Representatives after the completion of the report;
(b) the period of 15 sitting days of the Senate after the completion of the report;
the Minister must: (c) either:
(i) make a declaration under paragraph (3)(b); or (ii) make one or more declarations under
subparagraph (3)(c)(i); and (d) cause a copy of each such declaration to be laid before each
House of the Parliament in accordance with section 38 of the Legislative Instruments Act 2003.
Section 43 powers etc.
(5) To avoid doubt, this section does not create any obligations under subsection 43(2) that would not exist apart from this section.
(6) Subsection 43(5) does not apply to the condition.
(7) This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.
Definitions
(8) In this section:
daytime hours means the hours: (a) beginning at 6 am each day or, if another time is prescribed,
beginning at that prescribed time each day; and (b) ending at 6 pm on the same day or, if another time is
prescribed, ending at that prescribed time on the same day.
metropolitan licence area means: (a) a licence area in which is situated the General Post Office of
the capital city of: (i) New South Wales; or
(ii) Victoria; or (iii) Queensland; or (iv) Western Australia; or
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Licence conditions Division 3
Section 43D
Broadcasting Services Act 1992 111
(v) South Australia; or (b) the licence area known as Western Suburbs Sydney RA1.
regional commercial radio broadcasting licence means a commercial radio broadcasting licence that has a regional licence area.
regional licence area means a licence area that is not a metropolitan licence area.
43D Special licence conditions relating to digital radio commercial broadcasting services
Scope
(1) This section applies to a commercial radio broadcasting licence (the first licence) if:
(a) the first licence authorises the licensee to provide one or more digital commercial radio broadcasting services; and
(b) the first licence was not allocated under subsection 40(1).
Transmission by multiplex transmitter
(2) The first licence is subject to the condition that the licensee must not provide a digital commercial radio broadcasting service under the first 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.
Use of more than one-ninth of multiplex capacity
(3) If there is only one digital radio multiplex transmitter licence for the licence area of the first licence, the first licence is subject to the condition that the licensee of the first licence must not use more than one-ninth of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing, under the first licence, a digital commercial radio broadcasting service that passes the shared content test in relation to an analog commercial radio broadcasting service provided under:
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 3 Licence conditions
Section 43D
112 Broadcasting Services Act 1992
(a) the first licence; or (b) another commercial radio broadcasting licence that has the
same licence area as the first licence.
(4) If there are 2 or more digital radio multiplex transmitter licences for the licence area of the first licence, the first licence is subject to the condition that the licensee of the first licence must not use more than the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences for the purpose of providing, under the first licence, a digital commercial radio broadcasting service that passes the shared content test in relation to an analog commercial radio broadcasting service provided under:
(a) the first licence; or (b) another commercial radio broadcasting licence that has the
same licence area as the first licence.
(5) For the purposes of subsection (4), the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences is as follows:
Shared content test
(6) For the purposes of subsections (3) and (4), a digital commercial radio broadcasting service passes the shared content test at a particular time in relation to an analog commercial radio broadcasting service if:
(a) the program content of at least 50% of the total number of hours of programs broadcast by the first-mentioned service during daytime/evening hours during the 6-month period ending at that time;
were the same as: (b) the program content of at least 50% of the total number of
hours of programs broadcast by the other service during daytime/evening hours during the 6-month period ending at that time.
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
Licence conditions Division 3
Section 44
Broadcasting Services Act 1992 113
(7) For the purposes of subsection (6), ignore the following: (a) advertising or sponsorship material (whether or not of a
commercial kind); (b) a promotion for a radio program or a radio broadcasting
service; (c) any digital program enhancement content in relation to a
radio program; (d) community information material or community promotional
material; (e) a news break or weather bulletin; (f) any other similar material.
Definitions
(8) In this section:
category 1 digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.
category 2 digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.
daytime/evening hours means the hours: (a) beginning at 6 am each day; and (b) ending at midnight on the same day.
digital radio multiplex transmitter licence means: (a) a category 1 digital radio multiplex transmitter licence; or (b) a category 2 digital radio multiplex transmitter licence.
44 Matters to which conditions may relate
(1) Conditions of commercial television broadcasting licences and commercial radio broadcasting licences must be relevant to the broadcasting services to which those licences relate.
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 3 Licence conditions
Section 44
114 Broadcasting Services Act 1992
(2) Without limiting the range of conditions that may be imposed, the ACMA may impose a condition on a commercial television broadcasting licensee or a commercial radio 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.
Commercial television broadcasting licences and commercial radio broadcasting licences Part 4
General provisions Division 4
Section 45
Broadcasting Services Act 1992 115
Division 4—General provisions
45 Duration of licences
(1) Subject to Part 10, commercial television broadcasting licences (other than commercial television broadcasting licences allocated under section 38C) and commercial radio broadcasting licences remain in force for 5 years.
(2) A commercial television broadcasting licence allocated under section 38C remains in force for 10 years.
(3) Subsection (2) has effect subject to: (a) subsection 38C(15); and (b) Part 10.
46 Applications for renewal
(1) The ACMA may renew a commercial television broadcasting licence or a commercial radio broadcasting licence if:
(a) the licensee makes an application for renewal of the licence, in accordance with a form approved in writing by the ACMA, at least 20 weeks but not more than one year before the licence is due to expire; and
(b) the application is accompanied by the renewal fee determined in writing by the ACMA.
(2) If the ACMA receives an application for renewal, the ACMA must notify in the Gazette the fact that the application has been made.
47 ACMA to renew licences unless it is aware of special circumstances
(1) Subject to subsection (2), if the ACMA receives an application under section 46, the ACMA must, by notice in writing given to the licensee, renew the licence for a period of 5 years.
(2) The ACMA must refuse to renew a licence if the ACMA decides that subsection 41(2) applies to the licensee.
Part 4 Commercial television broadcasting licences and commercial radio broadcasting licences Division 4 General provisions
Section 48
116 Broadcasting Services Act 1992
(3) The ACMA is not required to conduct an investigation or a hearing into whether a licence should be renewed.
48 Transfer of commercial broadcasting licences
A commercial television broadcasting licensee or a commercial radio broadcasting licensee may transfer the licence to another person.
49 Surrender of commercial broadcasting licences
A commercial television broadcasting licensee or a commercial radio broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Preliminary Division 1
Section 50A
Broadcasting Services Act 1992 117
Part 5—Control of commercial broadcasting licences and datacasting transmitter licences
Division 1—Preliminary
50A This Part does not apply in relation to licences allocated under section 38C or subsection 40(1)
This Part does not apply in relation to: (a) a commercial television broadcasting licence; or (b) a commercial radio broadcasting licence;
if the licence was allocated under section 38C or subsection 40(1).
50 Interpretation—knowledge of company
(1) For the purposes of this Part, if a director, the chief executive or a secretary of a company has knowledge of a matter, the company is taken to have knowledge of the matter.
(2) Subsection (1) does not limit the ways in which knowledge of a company can be established.
51 Means of dealing with overlapping licence areas
If: (a) more than 30% of the licence area population of a licence
area is attributable to an overlap area; or (b) a licence area is entirely within another licence area;
the rules in this Part apply to the 2 licence areas, but not between those licence areas and other licence areas, as if the 2 licence areas were one.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 1 Preliminary
Section 51A
118 Broadcasting Services Act 1992
51A This Part does not apply to certain channel B datacasting transmitter licences
This Part does not apply to a channel B datacasting transmitter licence unless the relevant transmitter, or any of the relevant transmitters, is operated for transmitting a datacasting service that is capable of being received by a domestic digital television receiver.
52 Changes in licence area populations not to put persons in breach of this Part
If: (a) the ACMA makes a new determination of the licence area
population of a licence area or of the population of Australia; and
(b) as a result of the determination, a person would be in breach of subsection 53(1) or 55(1) or (2);
those subsections continue to apply to the person as if the previous determination remained in force.
52A Newspapers—additional constitutional basis
(1) Without limiting its effect apart from this section, this Act also has effect as provided by this section.
(2) This Act also has the effect it would have if each reference in this Part to a newspaper were, by express provision, confined to a newspaper where:
(a) the publisher of the newspaper is a constitutional corporation; or
(b) at least part of the circulation of the newspaper is: (i) in 2 or more States; or
(ii) in a Territory; or (iii) in a foreign country.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Limitation on control Division 2
Section 53
Broadcasting Services Act 1992 119
Division 2—Limitation on control
Subdivision A—Commercial broadcasting licences
53 Limitation on control of commercial television broadcasting licences
(1) A person must not be in a position to exercise control of commercial television broadcasting licences whose combined licence area populations exceed 75% of the population of Australia.
(2) A person must not be in a position to exercise control of more than one commercial television broadcasting licence in the same licence area.
54 Limitation on control of commercial radio broadcasting licences
A person must not be in a position to exercise control of more than 2 commercial radio broadcasting licences in the same licence area.
Subdivision B—Commercial television broadcasting licences and datacasting transmitter licences
54A Limitation on control of commercial television broadcasting licences and datacasting transmitter licences
A person must not be in a position to exercise control of: (a) a commercial television broadcasting licence; and (b) a datacasting transmitter licence.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 2 Limitation on control
Section 54B
120 Broadcasting Services Act 1992
Subdivision C—Commercial radio broadcasting licences and restricted datacasting licences
54B Limitation on control of commercial radio broadcasting licences and restricted datacasting licences during the digital radio moratorium period
(1) This section applies in relation to a commercial radio broadcasting licence if the licence was in force immediately before the digital radio start-up day for the licence area.
(2) During the digital radio moratorium period for the licence area, a person must not be in a position to exercise control of:
(a) the commercial radio broadcasting licence; and (b) a restricted datacasting licence.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Limitation on directorships Division 3
Section 55
Broadcasting Services Act 1992 121
Division 3—Limitation on directorships
Subdivision A—Television and radio
55 Limitation on numbers of directorships—television
(1) A person must not be a director of a company that is, or of 2 or more companies that are, between them, in a position to exercise control of commercial television broadcasting licences whose combined licence area populations exceed 75% of the population of Australia.
(2) A person must not be: (a) in a position to exercise control of a commercial television
broadcasting licence; and (b) a director of a company that is in a position to exercise
control of another commercial television broadcasting licence;
whose combined licence area populations exceed 75% of the population of Australia.
(3) A person must not be: (a) a director of a company that is in a position to exercise
control of a commercial television broadcasting licence; and (b) a director of a company that is in a position to exercise
control of another commercial television broadcasting licence;
if each of those licences have the same licence area.
(4) A person must not be: (a) a director of a company that is in a position to exercise
control of a commercial television broadcasting licence; and (b) in a position to exercise control of another commercial
television broadcasting licence; if each of those licences have the same licence area.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 3 Limitation on directorships
Section 56
122 Broadcasting Services Act 1992
56 Limitation on numbers of directorships—radio
A person must not be: (a) a director of a company that is, or of 2 or more companies
that are, between them, in a position to exercise control of more than 2 commercial radio broadcasting licences in the same licence area; or
(b) a director of a company that is, or of 2 or more companies that are, between them, in a position to exercise control of 2 commercial radio broadcasting licences in a licence area and in a position to exercise control of another commercial radio broadcasting licence in the same licence area; or
(c) in a position to exercise control of 2 commercial radio broadcasting licences in a licence area and a director of a company that is in a position to exercise control of another commercial radio broadcasting licence in the same licence area.
Subdivision B—Television and datacasting
56A Limitation on directorships—television and datacasting
(1) A person must not be a director of: (a) a company that is in a position to exercise control of a
commercial television broadcasting licence; and (b) a company that is in a position to exercise control of a
datacasting transmitter licence.
(2) A person must not: (a) be in a position to exercise control of a commercial television
broadcasting licence; and (b) be a director of a company that is in a position to exercise
control of a datacasting transmitter licence.
(3) A person must not: (a) be a director of a company that is in a position to exercise
control of a commercial television broadcasting licence; and (b) be in a position to exercise control of a datacasting
transmitter licence.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Newspapers associated with licence areas Division 5
Section 59
Broadcasting Services Act 1992 123
Division 5—Newspapers associated with licence areas
59 Newspapers associated with commercial television or radio broadcasting licence areas
(1) The ACMA is to maintain an Associated Newspaper Register.
(2) For the purposes of this Part, a newspaper is associated with the licence area of a licence if the name of the newspaper is entered in the Register as being associated with the licence area of the licence.
(3) If the ACMA is satisfied that at least 50% of the circulation of a newspaper is within the licence area of a commercial television broadcasting licence, the ACMA is to enter the name of the newspaper in the Register in relation to that licence area.
(4) If the ACMA is satisfied that less than 50% of the circulation of a newspaper that is entered in the Register in relation to a commercial television broadcasting licence is within the licence area of that licence, the ACMA is to remove the name of the newspaper from the Register in relation to that licence area.
(4A) If the ACMA is satisfied that: (a) at least 50% of the circulation of a newspaper is within the
licence area of a commercial radio broadcasting licence; and (b) the circulation of the newspaper within that licence area is at
least 2% of the licence area population; the ACMA must enter the name of the newspaper in the Register in relation to the licence area.
(4B) If the ACMA is satisfied that: (a) less than 50% of the circulation of a newspaper that is
entered in the Register in relation to a commercial radio broadcasting licence is within the licence area of that licence; or
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5 Newspapers associated with licence areas
Section 59
124 Broadcasting Services Act 1992
(b) the circulation of the newspaper within that licence area is less than 2% of the licence area population;
the ACMA must remove the name of the newspaper from the Register in relation to the licence area.
(4C) Despite subsections (3) and (4A), if the ACMA is satisfied that: (a) a person (either alone or together with one or more other
persons) has entered into, begun to carry out or carried out a scheme to publish a newspaper; and
(b) the person did so for the sole or dominant purpose of ensuring that the number of points in the licence area of a commercial radio broadcasting licence would be increased or maintained;
the ACMA may refuse to enter the name of the newspaper in the Register.
(4D) If: (a) a newspaper is entered in the Register; and (b) the ACMA is satisfied that:
(i) a person (either alone or together with one or more other persons) entered into, began to carry out or carried out a scheme to publish the newspaper; and
(ii) the person did so for the sole or dominant purpose of ensuring that the number of points in the licence area of a commercial radio broadcasting licence would be increased or maintained;
the ACMA may remove the name of the newspaper from the Register.
(5) The Register may be maintained by electronic means.
(6) The Register is to be made available for inspection on the internet.
(7) The ACMA may supply copies of or extracts from the Register certified by a member, and a copy or extract so certified is admissible in evidence in all courts and proceedings without further proof or production of the original.
(8) In this section:
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Newspapers associated with licence areas Division 5
Section 59
Broadcasting Services Act 1992 125
points has the same meaning as in Division 5A.
scheme has the same meaning as in Division 5A.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AA
126 Broadcasting Services Act 1992
Division 5A—Media diversity
Subdivision A—Introduction
61AA Definitions
In this Division:
commencement day means the day on which Schedule 2 to the Broadcasting Services Amendment (Media Ownership) Act 2006 commences.
controller of a media group means a person who is in a position to exercise control of each media operation in the media group.
daytime/evening hours means the hours: (a) beginning at 6 am each day; and (b) ending at midnight on the same day.
engage in conduct means: (a) do an act; or (b) omit to perform an act.
interest in a share means a legal or equitable interest in the share.
media group means a group of 2 or more media operations.
media operation means: (a) a commercial television broadcasting licence; or (b) a commercial radio broadcasting licence; or (c) a newspaper that is associated with the licence area of a
commercial television broadcasting licence or a commercial radio broadcasting licence.
metropolitan licence area means: (a) a licence area in which is situated the General Post Office of
the capital city of: (i) New South Wales; or
(ii) Victoria; or
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AA
Broadcasting Services Act 1992 127
(iii) Queensland; or (iv) Western Australia; or (v) South Australia; or
(b) the licence area known as Western Suburbs Sydney RA1.
name of a commercial television broadcasting licence or a commercial radio broadcasting licence means the service licence number of the licence.
points, in relation to the licence area of a commercial radio broadcasting licence, has the meaning given by section 61AC.
regional licence area means a licence area that is not a metropolitan licence area.
Register means the Register of Controlled Media Groups maintained under section 61AU.
registered controller of a registered media group means a person whose name is entered in the Register as a controller of the media group.
registered media group means a media group that is entered in the Register.
registrable media group, in relation to the licence area of a commercial radio broadcasting licence, means a media group covered by item 1 of the table in subsection 61AC(1) in its application to that licence area. For this purpose, disregard subsection 61AC(2).
scheme means: (a) any agreement, arrangement, understanding, promise or
undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; and
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.
shared content test has the meaning given by section 61AE.
statutory control rules has the meaning given by section 61AD.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AB
128 Broadcasting Services Act 1992
unacceptable 3-way control situation has the meaning given by section 61AEA.
unacceptable media diversity situation has the meaning given by section 61AB.
61AB Unacceptable media diversity situation
Metropolitan licence area
(1) For the purposes of this Division, an unacceptable media diversity situation exists in relation to a metropolitan licence area of a commercial radio broadcasting licence if the number of points in the licence area is less than 5.
Regional licence area
(2) For the purposes of this Division, an unacceptable media diversity situation exists in relation to a regional licence area of a commercial radio broadcasting licence if the number of points in the licence area is less than 4.
61AC Points
(1) Use the table to work out the number of points in the licence area of a commercial radio broadcasting licence (the first radio licence area):
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AC
Broadcasting Services Act 1992 129
Points Item This ... is worth ... 1 a group of 2 or more media operations, where:
(a) a person is in a position to exercise control of each of those media operations; and
(b) each of those media operations complies with the statutory control rules; and
(c) if a commercial television broadcasting licence is in the group—more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and
(d) if a commercial radio broadcasting licence is in the group—the licence area of the commercial radio broadcasting licence is, or is the same as, the first radio licence area; and
(e) if a newspaper is in the group—the newspaper is associated with the first radio licence area
1 point.
2 a commercial radio broadcasting licence, where: (a) the licence complies with the statutory control rules;
and (b) the licence area of the licence is, or is the same as,
the first radio licence area; and (c) item 1 does not apply to the licence
1 point.
3 a newspaper, where: (a) the newspaper complies with the statutory control
rules; and (b) the newspaper is associated with the first radio
licence area; and (c) item 1 does not apply to the newspaper
1 point.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AC
130 Broadcasting Services Act 1992
Points Item This ... is worth ... 4 a group of 2 or more commercial television
broadcasting licences, where: (a) each of those licences complies with the statutory
control rules; and (b) more than 50% of the licence area population of the
first radio licence area is attributable to the licence area of each of those commercial television broadcasting licences; and
(c) the core/primary commercial television broadcasting services to which those commercial television broadcasting licences relate pass the shared content test in relation to each other; and
(d) item 1 does not apply to any of those commercial television broadcasting licences
1 point.
5 a commercial television broadcasting licence, where: (a) the licence complies with the statutory control rules;
and (b) more than 50% of the licence area population of the
first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and
(c) none of the commercial television broadcasting services provided under the licence passes the shared content test in relation to any of the commercial television broadcasting services provided under another commercial television broadcasting licence, where more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the other commercial television broadcasting licence; and
(d) item 1 does not apply to the first-mentioned licence
1 point.
(2) If, apart from this subsection, all the media operations in a group of media operations mentioned in an item of the table are also in one or more other groups mentioned in an item of the table, then, for the purposes of subsection (1), ignore the existence of:
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AD
Broadcasting Services Act 1992 131
(a) if one of the groups has the highest number of media operations—the remaining group or groups; or
(b) if 2 or more of the groups have an equal highest number of media operations:
(i) all but one of the groups that have an equal highest number of media operations; and
(ii) the remaining group or groups; or (c) if the groups have an equal number of media operations—all
but one of those groups.
61AD Statutory control rules
For the purposes of this Division, a media operation complies with the statutory control rules if, and only if:
(a) no person is in breach of a prohibition in Division 2 or 3 that relates directly or indirectly to the media operation; or
(b) a person is in breach of a prohibition in Division 2 or 3 that relates directly or indirectly to the media operation, but the ACMA has approved the breach under section 67.
Note: Section 67 is about approval of temporary breaches.
61AE Shared content test
(1) For the purposes of this Division, a commercial television broadcasting service passes the shared content test at a particular time in relation to another commercial television broadcasting service if:
(a) the program content of at least 50% of the total number of hours of programs broadcast by the first-mentioned service during daytime/evening hours during the 6-month period ending at that time;
were the same as: (b) the program content of at least 50% of the total number of
hours of programs broadcast by the other service during daytime/evening hours during the 6-month period ending at that time.
(2) For the purposes of subsection (1), ignore the following:
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AEA
132 Broadcasting Services Act 1992
(a) advertising or sponsorship material (whether or not of a commercial kind);
(b) a promotion for a television program or a television broadcasting service;
(c) community information material or community promotional material;
(d) a news break or weather bulletin; (e) any other similar material.
(3) For the purposes of subsection (1), ignore any material covered by paragraph 6(8)(b), (c) or (d) of Schedule 4.
61AEA Unacceptable 3-way control situation
For the purposes of this Division, an unacceptable 3-way control situation exists in relation to the licence area of a commercial radio broadcasting licence (the first radio licence area) if a person is in a position to exercise control of:
(a) a commercial television broadcasting licence, where more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and
(b) a commercial radio broadcasting licence, where the licence area of the commercial radio broadcasting licence is, or is the same as, the first radio licence area; and
(c) a newspaper that is associated with the first radio licence area.
61AF Overlapping licence areas
Section 51 does not apply to this Division. Note: Section 51 is about overlapping licence areas.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AG
Broadcasting Services Act 1992 133
Subdivision B—Prohibition of transactions that result in an unacceptable media diversity situation coming into existence etc.
61AG Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—offence
A person commits an offence if: (a) one or more transactions take place on or after the
commencement day; and (b) the transactions have the result that:
(i) an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or
(ii) if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and
(c) the person was: (i) a party to the transactions; or
(ii) in a position to prevent the transactions taking place; and
(d) the ACMA has not approved the transactions under section 61AJ.
Penalty: 20,000 penalty units.
61AH Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—civil penalty
(1) This section applies if: (a) one or more transactions take place on or after the
commencement day; and (b) the transactions have the result that:
(i) an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AJ
134 Broadcasting Services Act 1992
(ii) if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and
(c) the ACMA has not approved the transactions under section 61AJ.
(2) A person must not be: (a) a party to the transactions; or (b) in a position to prevent the transactions taking place.
(3) Subsection (2) is a civil penalty provision.
61AJ Prior approval of transactions that result in an unacceptable media diversity situation coming into existence etc.
(1) A person may, before a transaction takes place that would place a person in breach of section 61AG or 61AH, make an application to the ACMA for an approval of the transaction.
(2) An application is to be made in accordance with a form approved in writing by the ACMA.
(3) If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(4) If, after receiving an application, the ACMA is satisfied that: (a) if the transaction took place, it would place a person in
breach of section 61AG or 61AH; and (b) either:
(i) the applicant; or (ii) another person;
will take action, within a period of not longer than 2 years, to ensure that: (iii) an unacceptable media diversity situation does not exist
in relation to the licence area concerned; or
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AJ
Broadcasting Services Act 1992 135
(iv) if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned;
the ACMA may, by written notice given to the applicant: (c) approve the transaction; and (d) if subparagraph (b)(i) applies—specify a period within which
action must be taken by the applicant to ensure that: (i) an unacceptable media diversity situation does not exist
in relation to the licence area concerned; or (ii) if an unacceptable media diversity situation already
exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned; and
(e) if subparagraph (b)(ii) applies—inform the applicant accordingly.
(5) The period specified in the notice must be at least one month, but not longer than 2 years.
(6) The ACMA may specify in a notice given to an applicant the action that the ACMA considers the applicant must take to ensure that:
(a) an unacceptable media diversity situation does not exist in relation to the licence area concerned; or
(b) if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned.
(7) In deciding whether to approve a transaction, the ACMA may have regard to:
(a) any relevant undertakings that: (i) have been accepted by the ACMA under section 61AS;
and (ii) have not been withdrawn or cancelled; and
(b) such other matters (if any) as the ACMA considers relevant.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AK
136 Broadcasting Services Act 1992
(8) If the ACMA refuses to approve a transaction, the ACMA must give written notice of the refusal to the applicant.
(9) The ACMA must deal with applications under subsection (1) in order of receipt.
(10) If the ACMA receives an application under subsection (1), the ACMA must use its best endeavours to make a decision on the application within 45 days after receipt of the application.
61AK Extension of time for compliance with prior approval notice
(1) A person who has been given a notice under section 61AJ may, within 3 months before the end of the period specified in the notice but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.
(2) The ACMA may grant an extension if it is of the opinion that an extension is appropriate in all the circumstances.
(3) If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(4) The ACMA must not grant more than one extension, and the period of any extension must not exceed:
(a) the period originally specified in the notice; or (b) one year;
whichever is the lesser period.
(5) In deciding whether to grant an extension to an applicant, the ACMA is to have regard to:
(a) the endeavours that the applicant made in attempting to comply with the notice; and
(b) the difficulties that the applicant experienced in attempting to comply with the notice;
but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AL
Broadcasting Services Act 1992 137
(6) If the ACMA does not, within 45 days after: (a) receiving the application; or (b) if the ACMA has requested further information—receiving
that further information; extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:
(c) the period originally specified in the notice; or (d) one year;
whichever is the lesser period.
(7) If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.
61AL Breach of prior approval notice—offence
(1) A person commits an offence if: (a) the person has been given a notice under section 61AJ; and (b) the person engages in conduct; and (c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
61AM Breach of prior approval notice—civil penalty
(1) A person must comply with a notice under section 61AJ.
(2) Subsection (1) is a civil penalty provision.
(3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AMA
138 Broadcasting Services Act 1992
Subdivision BA—Prohibition of transactions that result in an unacceptable 3-way control situation coming into existence etc.
61AMA Prohibition of transactions that result in an unacceptable 3-way control situation coming into existence—offence
A person commits an offence if: (a) one or more transactions take place on or after the
commencement day; and (b) the transactions have the result that an unacceptable 3-way
control situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; and
(c) the person was: (i) a party to the transactions; or
(ii) in a position to prevent the transactions taking place; and
(d) the ACMA has not approved the transactions under section 61AMC.
Penalty: 20,000 penalty units.
61AMB Prohibition of transactions that result in an unacceptable 3-way control situation coming into existence—civil penalty
(1) This section applies if: (a) one or more transactions take place on or after the
commencement day; and (b) the transactions have the result that an unacceptable 3-way
control situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; and
(c) the ACMA has not approved the transactions under section 61AMC.
(2) A person must not be: (a) a party to the transactions; or (b) in a position to prevent the transactions taking place.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AMC
Broadcasting Services Act 1992 139
(3) Subsection (2) is a civil penalty provision.
61AMC Prior approval of transactions that result in an unacceptable 3-way control situation coming into existence etc.
(1) A person may, before a transaction takes place that would place a person in breach of section 61AMA or 61AMB, make an application to the ACMA for an approval of the transaction.
(2) An application is to be made in accordance with a form approved in writing by the ACMA.
(3) If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(4) If, after receiving an application, the ACMA is satisfied that: (a) if the transaction took place, it would place a person in
breach of section 61AMA or 61AMB; and (b) either:
(i) the applicant; or (ii) another person;
will take action, within a period of not longer than 12 months, to ensure that an unacceptable 3-way control situation does not exist in relation to the licence area concerned;
the ACMA may, by written notice given to the applicant: (c) approve the transaction; and (d) if subparagraph (b)(i) applies—specify a period within which
action must be taken by the applicant to ensure that an unacceptable 3-way control situation does not exist in relation to the licence area concerned; and
(e) if subparagraph (b)(ii) applies—inform the applicant accordingly.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AMD
140 Broadcasting Services Act 1992
(5) The period specified in the notice must be at least one month, but not longer than 12 months.
(6) The ACMA may specify in a notice given to an applicant the action that the ACMA considers the applicant must take to ensure that an unacceptable 3-way control situation does not exist in relation to the licence area concerned.
(7) In deciding whether to approve a transaction, the ACMA may have regard to:
(a) any relevant undertakings that: (i) have been accepted by the ACMA under section 61AS;
and (ii) have not been withdrawn or cancelled; and
(b) such other matters (if any) as the ACMA considers relevant.
(8) If the ACMA refuses to approve a transaction, the ACMA must give written notice of the refusal to the applicant.
(9) The ACMA must deal with applications under subsection (1) in order of receipt.
(10) If the ACMA receives an application under subsection (1), the ACMA must use its best endeavours to make a decision on the application within 45 days after receipt of the application.
61AMD Extension of time for compliance with prior approval notice
(1) A person who has been given a notice under section 61AMC may, within 3 months before the end of the period specified in the notice but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.
(2) The ACMA may grant an extension if it is of the opinion that an extension is appropriate in all the circumstances.
(3) If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AME
Broadcasting Services Act 1992 141
(4) The ACMA must not grant more than one extension, and the period of any extension must not exceed:
(a) the period originally specified in the notice; or (b) 6 months;
whichever is the lesser period.
(5) In deciding whether to grant an extension to an applicant, the ACMA is to have regard to:
(a) the endeavours that the applicant made in attempting to comply with the notice; and
(b) the difficulties that the applicant experienced in attempting to comply with the notice;
but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.
(6) If the ACMA does not, within 45 days after: (a) receiving the application; or (b) if the ACMA has requested further information—receiving
that further information; extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:
(c) the period originally specified in the notice; or (d) 6 months;
whichever is the lesser period.
(7) If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.
61AME Breach of prior approval notice—offence
(1) A person commits an offence if: (a) the person has been given a notice under section 61AMC;
and (b) the person engages in conduct; and (c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AMF
142 Broadcasting Services Act 1992
(2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
61AMF Breach of prior approval notice—civil penalty
(1) A person must comply with a notice under section 61AMC.
(2) Subsection (1) is a civil penalty provision.
(3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.
Subdivision C—Remedial directions
61AN Remedial directions—unacceptable media diversity situation
(1) If, on or after the commencement day, the ACMA is satisfied that an unacceptable media diversity situation exists in relation to the licence area of a commercial radio broadcasting licence, the ACMA may give a person such written directions as the ACMA considers appropriate for the purpose of ensuring that that situation ceases to exist.
(2) The ACMA’s directions may include: (a) a direction requiring the disposal of shares or interests in
shares; or (b) a direction restraining the exercise of any rights attached to:
(i) shares; or (ii) interests in shares; or
(c) a direction prohibiting or deferring the payment of any sums due to a person in respect of shares, or interests in shares, held by the person; or
(d) a direction that any exercise of rights attached to: (i) shares; or
(ii) interests in shares;
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AN
Broadcasting Services Act 1992 143
be disregarded.
(3) Subsection (2) does not limit subsection (1).
(4) The ACMA must not give a direction under subsection (1) if the direction would have the effect of requiring a registered controller of a registered media group to cease to be in a position to exercise control of any of the media operations in the group.
(4A) Subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of a registered media group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of a media operation in the group if:
(a) the registered controller failed to comply with a notice under section 61AJ; and
(b) the notice related, to any extent, to the media operation.
(4B) Subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of a registered media group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of a media operation in the group if:
(a) an approval under section 61AJ was given on the basis that the ACMA was satisfied that a person other than the registered controller would, within a particular period, take action that, to any extent, relates to the media operation; and
(b) the person failed to take the action within that period.
(4C) If: (a) the ACMA made any of the following decisions (the original
decision) in connection with a registrable media group in relation to the licence area of a commercial radio broadcasting licence:
(i) a decision to enter the media group in the Register under subsection 61AY(1) or 61AZ(1);
(ii) a decision under subsection 61AZE(1) confirming the entry of the media group in the Register;
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AN
144 Broadcasting Services Act 1992
(iii) a decision under section 61AZF affirming a decision under subsection 61AZE(1) to confirm the entry of the media group in the Register;
(iv) a decision under section 61AZF revoking a decision under subsection 61AZE(1) to cancel the entry of the media group in the Register; and
(b) any of the following subparagraphs applies: (i) in the case of a decision under subsection 61AZE(1)—a
person applied to the ACMA for a reconsideration of the original decision;
(ii) in the case of a decision under section 61AZF—a person applied to the Administrative Appeals Tribunal for a review of the original decision;
(iii) in any case—a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to the original decision; and
(c) the original decision was set aside or revoked; and (d) after the original decision was set aside or revoked, the
ACMA entered another registrable media group in relation to that licence area in the Register; and
(e) after that other group was entered in the Register, the Administrative Appeals Tribunal or a court made a decision the effect of which was to restore or affirm the original decision;
subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of that other group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of any media operation in that other group.
(5) A direction under subsection (1) must specify a period within which the person must comply with the direction.
(6) The period must not be longer than 2 years.
(6A) If: (a) the ACMA gives a direction under subsection (1) in the
circumstances referred to in subsection (4C); and (b) subsection (8) does not apply;
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61ANA
Broadcasting Services Act 1992 145
the period specified in the direction must be 2 years.
(7) If the ACMA is satisfied that the person: (a) acted in good faith; and (b) took reasonable precautions, and exercised due diligence, to
avoid: (i) the unacceptable media diversity situation coming into
existence; or (ii) if the unacceptable media diversity situation already
existed—a reduction in the number of points in the licence area concerned;
the period specified in the direction must be 2 years.
(8) If the ACMA is satisfied that the person acted flagrantly in breach of section 61AG or 61AH, the period specified in the direction must be one month.
(9) The Parliament recognises that, if a period of one month is specified in a direction, the person to whom the direction is given or another person may be required to dispose of shares or interests in shares in a way, or otherwise make arrangements, that could cause the person a considerable financial disadvantage. Such a result is seen as necessary in order to discourage flagrant breaches of sections 61AG and 61AH.
61ANA Remedial directions—unacceptable 3-way control situation
(1) If, on or after the commencement day, the ACMA is satisfied that an unacceptable 3-way control situation exists in relation to the licence area of a commercial radio broadcasting licence, the ACMA may give a person such written directions as the ACMA considers appropriate for the purpose of ensuring that that situation ceases to exist.
(2) The ACMA’s directions may include: (a) a direction requiring the disposal of shares or interests in
shares; or (b) a direction restraining the exercise of any rights attached to:
(i) shares; or (ii) interests in shares; or
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AP
146 Broadcasting Services Act 1992
(c) a direction prohibiting or deferring the payment of any sums due to a person in respect of shares, or interests in shares, held by the person; or
(d) a direction that any exercise of rights attached to: (i) shares; or
(ii) interests in shares; be disregarded.
(3) Subsection (2) does not limit subsection (1).
(4) A direction under subsection (1) must specify a period within which the person must comply with the direction.
(5) The period must not be longer than 12 months.
(6) If the ACMA is satisfied that the person: (a) acted in good faith; and (b) took reasonable precautions, and exercised due diligence, to
avoid the unacceptable 3-way control situation coming into existence;
the period specified in the direction must be 12 months.
(7) If the ACMA is satisfied that the person acted flagrantly in breach of section 61AMA or 61AMB, the period specified in the direction must be one month.
(8) The Parliament recognises that, if a period of one month is specified in a direction, the person to whom the direction is given or another person may be required to dispose of shares or interests in shares in a way, or otherwise make arrangements, that could cause the person a considerable financial disadvantage. Such a result is seen as necessary in order to discourage flagrant breaches of sections 61AMA and 61AMB.
61AP Extension of time for compliance with remedial direction
(1) A person who has been given a direction under section 61AN or 61ANA may, within 3 months before the end of the period specified in the direction but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AP
Broadcasting Services Act 1992 147
(2) An application for an extension cannot be made if the period specified in the direction was one month.
(3) In the case of a direction under section 61AN, the ACMA may grant an extension if it is of the opinion that:
(a) an unacceptable media diversity situation is likely to cease to exist in the licence area concerned within 3 months after the end of the period specified in the direction under section 61AN; and
(b) the applicant acted in good faith; and (c) an extension is appropriate in all the circumstances.
(3A) In the case of a direction under section 61ANA, the ACMA may grant an extension if it is of the opinion that:
(a) an unacceptable 3-way control situation is likely to cease to exist in the licence area concerned within 3 months after the end of the period specified in the direction under section 61ANA; and
(b) the applicant acted in good faith; and (c) an extension is appropriate in all the circumstances.
(4) If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(5) The ACMA must not grant more than one extension, and the period of any extension must not exceed 3 months.
(6) In deciding whether to grant an extension to a person, the ACMA is to have regard to:
(a) the endeavours that the applicant made in attempting to comply with the direction; and
(b) the difficulties experienced by the applicant in attempting to comply with the direction; and
(c) the seriousness of the situation that led to the giving of the direction under section 61AN or 61ANA, as the case may be;
but the ACMA must not have regard to any financial disadvantage that compliance with the direction may cause.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AQ
148 Broadcasting Services Act 1992
(7) If the ACMA does not, within 45 days after: (a) receiving the application; or (b) if the ACMA has requested further information—receiving
that further information; extend the period or refuse to extend the period originally specified in the direction, the ACMA is to be taken to have extended that period by 3 months.
(8) If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.
61AQ Breach of remedial direction—offence
(1) A person commits an offence if: (a) the person has been given a direction under section 61AN or
61ANA; and (b) the person engages in conduct; and (c) the person’s conduct contravenes a requirement in the
direction.
Penalty: 20,000 penalty units.
(2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
61AR Breach of remedial direction—civil penalty
(1) A person must comply with a direction under section 61AN or 61ANA.
(2) Subsection (1) is a civil penalty provision.
(3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AS
Broadcasting Services Act 1992 149
Subdivision D—Enforceable undertakings
61AS Acceptance of undertakings
(1) The ACMA may accept any of the following undertakings: (a) a written undertaking given by a person that the person will
take specified action to ensure that an unacceptable media diversity situation does not exist in relation to the licence area of a commercial radio broadcasting licence;
(b) if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—a written undertaking given by a person that the person will take specified action to ensure that there is not a reduction in the number of points in the licence area;
(c) a written undertaking given by a person that the person will take specified action to ensure that an unacceptable 3-way control situation does not exist in relation to the licence area of a commercial radio broadcasting licence.
(2) The undertaking must be expressed to be an undertaking under this section.
(3) The person may withdraw or vary the undertaking at any time, but only with the consent of the ACMA.
(4) The ACMA may, by written notice given to the person, cancel the undertaking.
(5) The ACMA may publish the undertaking on its website.
61AT Enforcement of undertakings
(1) If: (a) a person has given an undertaking under section 61AS; and (b) the undertaking has not been withdrawn or cancelled; and (c) the ACMA considers that the person has breached the
undertaking; the ACMA may apply to the Federal Court for an order under subsection (2).
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AU
150 Broadcasting Services Act 1992
(2) If the Federal Court is satisfied that the person has breached the undertaking, the court may make any or all of the following orders:
(a) an order directing the person to comply with the undertaking; (b) an order directing the person to pay to the ACMA, on behalf
of the Commonwealth, an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;
(c) any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
(d) any other order that the court considers appropriate.
Subdivision E—Register of Controlled Media Groups
61AU Register of Controlled Media Groups
(1) The ACMA is to maintain a register, to be known as the Register of Controlled Media Groups.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
(4) The Register is not a legislative instrument.
(5) The ACMA must begin to comply with subsection (1) as soon as practicable after the start of 1 February 2007.
61AV How a media group is to be entered in the Register
(1) For the purposes of this Subdivision, the ACMA is to enter a media group in the Register by entering in the Register, under a heading for the group:
(a) the names of the media operations in the group; and (b) the name of the controller, or the names of each of the
controllers, of the media operations in the group.
(2) A media group is to be identified in the Register by a unique number assigned by the ACMA.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AW
Broadcasting Services Act 1992 151
61AW Explanatory notes may be included in the Register
(1) The ACMA may include explanatory notes in the Register.
(2) Explanatory notes do not form part of a media group’s entry in the Register.
61AX Continuity of media group
(1) For the purposes of this Subdivision, a change in the controller, or any of the controllers, of a media group does not affect the continuity of the group.
(2) For the purposes of this Subdivision, a change in the composition of the media operations in a media group results in the group ceasing to exist.
(3) However, the rule in subsection (2) does not apply to a change in the composition of the media operations in a media group if:
(a) one or more media operations cease to be in the group; and (b) at least 2 media operations remain in the group; and (c) there is no increase in the number of media operations that
remain in the group.
61AY Initial registration of media groups
(1) If the ACMA is satisfied that a particular media group was a registrable media group in relation to the licence area of a commercial radio broadcasting licence at the start of 1 February 2007, the ACMA must enter the group in the Register.
(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant entry within 2 business days after receiving the notification or the last of the notifications.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AZ
152 Broadcasting Services Act 1992
(4) If the ACMA makes an entry under subsection (1), the ACMA is to include in the Register a note to the effect that the entry is unconfirmed.
(5) An entry under subsection (1) is taken to have been made at the start of 1 February 2007.
61AZ Registration of newly-formed media group
(1) If: (a) the ACMA is satisfied that:
(i) a registrable media group has come into existence on or after 1 February 2007; and
(ii) the media group is not already entered in the Register; and
(b) the ACMA is satisfied that the coming into existence of the media group does not have the result that:
(i) an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or
(ii) if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and
(c) the ACMA is satisfied that the coming into existence of the media group does not have the result that an unacceptable 3-way control situation comes into existence in relation to the licence area of a commercial radio broadcasting licence;
the ACMA must enter the group in the Register.
(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant entry within 2 business days after receiving the notification or the last of the notifications.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AZ
Broadcasting Services Act 1992 153
(4) If the ACMA makes an entry under subsection (1), the ACMA is to include in the Register a note to the effect that the entry is unconfirmed.
Register frozen while ACMA reconsideration is pending or AAT/court proceedings are pending
(5) If: (a) the ACMA makes a decision under this Subdivision in
connection with a registrable media group in relation to the licence area of a commercial radio broadcasting licence; and
(b) any of the following subparagraphs applies: (i) in the case of a decision under subsection 61AZE(1)—a
person applies to the ACMA for a reconsideration of the decision;
(ii) in the case of a decision under section 61AZF—a person applies to the Administrative Appeals Tribunal for a review of the decision;
(iii) in any case—a person applies to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to the decision;
then: (c) despite subsection (1), the ACMA must not enter any other
registrable media group in relation to that licence area in the Register under that subsection during the period (the pending period) when that application has not been finalised unless the ACMA is satisfied that, assuming that the decision were not to be set aside or revoked, the coming into existence of the media group does not have the result that:
(i) an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or
(ii) if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and
(d) if the ACMA is satisfied that another registrable media group in relation to that licence area has come into existence during the pending period—subsection (3) has effect, in relation to
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AZ
154 Broadcasting Services Act 1992
the other registrable media group, as if the relevant notification, or the last of the relevant notifications, as the case may be, had been received on the first day after the end of the pending period.
(6) For the purposes of subsection (5), an application for reconsideration of a decision is taken not to have been finalised during the period of 28 days beginning on:
(a) if, because of the operation of subsection 61AZF(9), the decision is taken to be affirmed—the day on which the decision is taken to have been affirmed; or
(b) in any other case—the day on which the decision on the reconsideration is notified to the person concerned.
(7) For the purposes of subsection (5), if: (a) a person applied to the Administrative Appeals Tribunal for a
review of a decision; and (b) the Administrative Appeals Tribunal makes a decision on the
application; the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (b) is made.
(8) For the purposes of subsection (5), if: (a) a person applied to the Administrative Appeals Tribunal for a
review of a decision; and (b) the Administrative Appeals Tribunal made a decision on the
application; and (c) a person appeals from the decision to the Federal Court; and (d) the Court makes a decision on the appeal;
the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (d) is made.
(9) For the purposes of subsection (5), if: (a) a person applied to a court for an order of review, a writ of
mandamus or prohibition, or an injunction, in relation to a decision; and
(b) the court makes a decision on the application;
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AZA
Broadcasting Services Act 1992 155
the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (b) is made.
(10) For the purposes of subsection (5), if: (a) a person applied to a court for an order of review, a writ of
mandamus or prohibition, or an injunction, in relation to a decision; and
(b) the court made a decision on the application; and (c) the decision became the subject of an appeal; and (d) the court or another court makes a decision on the appeal;
and (e) the decision mentioned in paragraph (d) could be the subject
of an appeal; the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (d) is made.
(11) The regulations may provide that, in specified circumstances, an application is taken, for the purposes of subsection (5), not to have been finalised during a period ascertained in accordance with the regulations.
(12) The regulations may extend the 28-day period referred to in subsection (6), (7), (8), (9) or (10).
61AZA De-registration of media group that has ceased to exist
(1) If the ACMA is satisfied that a registered media group has ceased to exist on or after 1 February 2007, the ACMA must remove the group’s entry from the Register.
(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must remove the relevant entry within 2 business days after receiving the notification or the last of the notifications.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AZB
156 Broadcasting Services Act 1992
(4) If, under subsection (1), the ACMA removes a group’s entry from the Register, the ACMA must include in the Register a note to the effect that the removal is unconfirmed.
61AZB Registration of change of controller of registered media group
(1) If the ACMA is satisfied that: (a) a person who is not a registered controller of a registered
media group has become a controller of the group on or after 1 February 2007; or
(b) a registered controller of a registered media group has ceased to be a controller of the group on or after 1 February 2007;
the ACMA must: (c) if paragraph (a) applies—alter the group’s entry in the
Register by adding the name of the controller concerned; or (d) if paragraph (b) applies—alter the group’s entry in the
Register by omitting the name of the controller concerned.
(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant alteration within 2 business days after receiving the notification or the last of the notifications.
(4) If the ACMA makes an alteration under subsection (1), the ACMA must include in the Register a note to the effect that the alteration is unconfirmed.
61AZC Registration of change of composition of media group
(1) If the ACMA is satisfied that: (a) one or more of the media operations in a registered media
group have ceased to be in that group on or after 1 February 2007; and
(b) the group continues in existence;
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AZCA
Broadcasting Services Act 1992 157
the ACMA must alter the group’s entry in the Register by omitting the name or names of the media operations referred to in paragraph (a).
(2) For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant alteration within 2 business days after receiving the notification or the last of the notifications.
(4) If the ACMA makes an alteration under subsection (1), the ACMA is to include in the Register a note to the effect that the alteration is unconfirmed.
61AZCA ACMA must deal with notifications in order of receipt
(1) For the purposes of sections 61AY, 61AZ, 61AZA, 61AZB and 61AZC, the ACMA must deal with notifications given, or purportedly given, under Division 6 in order of receipt.
(2) Subsection (1) has effect subject to subsection 61AZ(5).
61AZD Conditional transactions
Entry of media group
(1) If: (a) a person is a party to a proposed transaction; and (b) the proposed transaction is subject to the condition that the
ACMA enters a proposed media group in the Register; and (c) the person requests the ACMA to assume, for the purposes of
this Subdivision, that the proposed transaction: (i) had been completed; and
(ii) were not subject to that condition; and (d) the ACMA is satisfied that:
(i) the parties to the proposed transaction are acting in good faith; and
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AZD
158 Broadcasting Services Act 1992
(ii) if the media group were to be entered in the Register on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the making of the relevant entry in the Register;
then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).
Removal of entry of media group
(2) If: (a) a person is a party to a proposed transaction; and (b) the proposed transaction is subject to the condition that the
ACMA removes a media group’s entry from the Register; and
(c) the person requests the ACMA to assume, for the purposes of this Subdivision, that the proposed transaction:
(i) had been completed; and (ii) were not subject to that condition; and
(d) the ACMA is satisfied that: (i) the parties to the proposed transaction are acting in good
faith; and (ii) if the media group’s entry were to be removed from the
Register on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the removal of the relevant entry from the Register;
then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).
Alteration of entry of media group
(3) If: (a) a person is a party to a proposed transaction; and (b) the proposed transaction is subject to the condition that the
ACMA alters a media group’s entry in the Register; and (c) the person requests the ACMA to assume, for the purposes of
this Subdivision, that the proposed transaction:
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AZE
Broadcasting Services Act 1992 159
(i) had been completed; and (ii) were not subject to that condition; and
(d) the ACMA is satisfied that: (i) the parties to the proposed transaction are acting in good
faith; and (ii) if the media group’s entry in the Register were to be
altered on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the making of the relevant alteration in the Register;
then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).
Requests
(4) A request under subsection (1), (2) or (3) must be: (a) in a form approved in writing by the ACMA; and (b) accompanied by such information as the ACMA requires.
(5) An approved form of a request may provide for verification by statutory declaration of information accompanying requests.
61AZE Review and confirmation of entries and alterations etc.
Review
(1) If the ACMA: (a) enters a media group in the Register under
subsection 61AY(1) or 61AZ(1); or (b) removes a media group’s entry from the Register under
subsection 61AZA(1); or (c) makes an alteration to a media group’s entry in the Register
under subsection 61AZB(1) or 61AZC(1); the ACMA must review the entry, removal or alteration, and make a decision:
(d) confirming the relevant entry, removal or alteration; or (e) cancelling the relevant entry, removal or alteration.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AZE
160 Broadcasting Services Act 1992
Confirmation
(2) If the ACMA confirms the relevant entry, removal or alteration, the ACMA must remove from the Register the note stating that the entry, removal or alteration is unconfirmed.
Cancellation
(3) If the ACMA cancels an entry, the ACMA must: (a) remove the entry from the Register; and (b) remove from the Register the note stating that the entry is
unconfirmed.
(4) If the ACMA cancels the removal of an entry, the ACMA must: (a) restore the entry to the Register; and (b) remove from the Register the note stating that the removal is
unconfirmed.
(5) If the ACMA cancels an alteration, the ACMA must: (a) reverse the alteration; and (b) remove from the Register the note stating that the alteration
is unconfirmed.
ACMA not required to rely on notifications
(6) To avoid doubt, in exercising its powers under subsection (1), the ACMA is not required to rely on a notification given, or purportedly given, under Division 6.
Conditional transactions
(7) If: (a) under subsection (1), the ACMA reviews an entry or
alteration; and (b) the entry or alteration was made on the assumption that a
proposed transaction had been completed (see section 61AZD); and
(c) the ACMA is not satisfied that the proposed transaction was completed within 5 business days after the making of the entry or alteration;
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AZE
Broadcasting Services Act 1992 161
the ACMA must make a decision under subsection (1) cancelling the entry or alteration.
(8) If: (a) under subsection (1), the ACMA reviews a removal of an
entry; and (b) the removal was done on the assumption that a proposed
transaction had been completed (see section 61AZD); and (c) the ACMA is not satisfied that the proposed transaction was
completed within 5 business days after the removal; the ACMA must make a decision under subsection (1) to cancel the removal.
ACMA may request additional information
(9) If: (a) under subsection (1), the ACMA reviews an entry, removal
or alteration; and (b) the ACMA considers that additional information is required
before the ACMA can make a decision under subsection (1); the ACMA may, within 14 days after the relevant entry, removal or alteration, by written notice given to a person, request the person to provide that information.
Deadline
(10) If the ACMA does not, within 28 days after: (a) doing whichever of the following is applicable:
(i) entering a media group in the Register under subsection 61AY(1) or 61AZ(1);
(ii) removing a media group’s entry from the Register under subsection 61AZA(1);
(iii) making an alteration to a media group’s entry in the Register under subsection 61AZB(1) or 61AZC(1); or
(b) if the ACMA has requested further information—receiving that further information;
make a decision under subsection (1): (c) confirming the relevant entry, removal or alteration; or
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5A Media diversity
Section 61AZF
162 Broadcasting Services Act 1992
(d) cancelling the relevant entry, removal or alteration; the ACMA is taken to have made a decision under subsection (1) at the end of that 28-day period confirming the relevant entry, removal or alteration.
61AZF Reconsideration of decisions
Applications for reconsideration of decisions
(1) A person: (a) whose interests are affected by a decision under
subsection 61AZE(1); and (b) who is dissatisfied with the decision;
may apply to the ACMA for the ACMA to reconsider the decision.
(2) The application must: (a) be in a form approved in writing by the ACMA; and (b) set out the reasons for the application.
(3) The application must be made within 7 days after the taking of the action required by subsection 61AZE(2), (3), (4) or (5) to give effect to the decision.
(4) An approved form of an application may provide for verification by statutory declaration of statements in applications.
Reconsideration of decisions—application
(5) Upon receiving an application under subsection (1), the ACMA must:
(a) reconsider the decision; and (b) affirm or revoke the decision.
(6) The ACMA’s decision on reconsideration of a decision has effect as if it had been made under subsection 61AZE(1).
(7) The ACMA must give to the applicant a notice stating its decision on the reconsideration.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Media diversity Division 5A
Section 61AZG
Broadcasting Services Act 1992 163
ACMA may request additional information
(8) If: (a) an application is made under subsection (1); and (b) the ACMA considers that additional information is required
before the ACMA can make a decision under subsection (5); the ACMA may, within 14 days after receiving the application, by written notice given to:
(c) the applicant; or (d) any other person;
request the applicant or other person to provide that information.
(9) If the ACMA does not, within 28 days after: (a) receiving an application under subsection (1); or (b) if the ACMA has requested further information—receiving
that further information; make a decision under subsection (5), the ACMA is taken to have made a decision under subsection (5) at the end of that 28-day period affirming the original decision.
Reconsideration of decisions—ACMA’s own initiative
(10) The ACMA may, at any time: (a) reconsider a decision made under subsection 61AZE(1); and (b) affirm or revoke the decision.
(11) The ACMA’s decision on reconsideration of a decision has effect as if it had been made under subsection 61AZE(1).
61AZG Corrections of clerical errors or obvious defects
The ACMA may alter the Register for the purposes of correcting a clerical error or an obvious defect in the Register.
61AZH Regulations
The regulations may make further provision about the operation of the Register.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5B Disclosure of cross-media relationships
Section 61BA
164 Broadcasting Services Act 1992
Division 5B—Disclosure of cross-media relationships
61BA Definitions
In this Division:
media operation means: (a) a commercial television broadcasting licence; or (b) a commercial radio broadcasting licence; or (c) a newspaper that is associated with the licence area of a
commercial television broadcasting licence or a commercial radio broadcasting licence.
prime-time hours means the hours: (a) beginning at 6 am each day or, if another time is prescribed,
beginning at that prescribed time each day; and (b) ending at 10 am on the same day or, if another time is
prescribed, ending at that prescribed time on the same day.
set of media operations means: (a) a commercial television broadcasting licence and a
commercial radio broadcasting licence that have the same licence area; or
(b) a commercial television broadcasting licence and a newspaper that is associated with the licence area of the licence; or
(c) a commercial radio broadcasting licence and a newspaper that is associated with the licence area of the licence.
61BB Disclosure of cross-media relationship by commercial television broadcasting licensee
Scope
(1) This section applies if: (a) a person is in a position to exercise control of each media
operation in a set of media operations; and
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Disclosure of cross-media relationships Division 5B
Section 61BB
Broadcasting Services Act 1992 165
(b) a commercial television broadcasting licence is in the set; and
(c) the licensee broadcasts matter that is wholly or partly about: (i) the business affairs of a commercial radio broadcasting
licensee whose licence is in the set; or (ii) the business affairs of the publisher of a newspaper that
is in the set. Note: For business affairs, see section 61BH.
Requirement to disclose cross-media relationship
(2) If subparagraph (1)(c)(i) applies, the commercial television broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial television broadcasting licensee and the commercial radio broadcasting licensee.
(3) It is sufficient if the statement under subsection (2) is to the effect that there is a cross-media relationship between the commercial television broadcasting licensee and the commercial radio broadcasting licensee.
(4) If subparagraph (1)(c)(ii) applies, the commercial television broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial television broadcasting licensee and the publisher of the newspaper.
(5) It is sufficient if the statement under subsection (4) is to the effect that there is a cross-media relationship between the commercial television broadcasting licensee and the publisher of the newspaper.
How statement is to be broadcast
(6) A statement under subsection (2) or (4) must be broadcast in a way that will adequately bring it to the attention of a reasonable person who may have viewed the broadcast mentioned in paragraph (1)(c).
(7) The regulations may provide that subsection (6) is taken to have been complied with if the statement is broadcast in the manner, and
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5B Disclosure of cross-media relationships
Section 61BC
166 Broadcasting Services Act 1992
at the time, specified in, or ascertained in accordance with, the regulations.
61BC Choice of disclosure method—commercial radio broadcasting licensee
Notice of choice may be given to the ACMA
(1) A commercial radio broadcasting licensee may give the ACMA a written notice making a choice that section 61BE apply to the licensee with effect from a Sunday specified in the notice. Note: If a notice is not given, section 61BD applies to the licensee.
When notice must be given
(2) A notice under subsection (1) must be given at least 5 business days before the Sunday specified in the notice.
Duration of notice
(3) A notice under subsection (1): (a) comes into force at the beginning of the Sunday specified in
the notice; and (b) unless sooner revoked, remains in force indefinitely.
Revocation of notice
(4) If a notice under subsection (1) is in force in relation to a commercial radio broadcasting licensee, the licensee may, by written notice given to the ACMA, revoke the subsection (1) notice with effect from the end of a Saturday specified in the revocation notice.
(5) A notice under subsection (4) must be given at least 5 business days before the Saturday specified in the notice.
Notices to be available on the internet
(6) If a notice is in force under subsection (1), the ACMA must make a copy of the notice available on the internet.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Disclosure of cross-media relationships Division 5B
Section 61BD
Broadcasting Services Act 1992 167
61BD Disclosure of cross-media relationship by commercial radio broadcasting licensee—business affairs disclosure method
Scope
(1) This section applies if: (a) a person is in a position to exercise control of each media
operation in a set of media operations; and (b) a commercial radio broadcasting licence is in the set; and (c) the licensee broadcasts matter that is wholly or partly about:
(i) the business affairs of a commercial television broadcasting licensee whose licence is in the set; or
(ii) the business affairs of the publisher of a newspaper that is in the set; and
(d) a notice under subsection 61BC(1) is not in force in relation to the commercial radio broadcasting licensee.
Note: For business affairs, see section 61BH.
Requirement to disclose cross-media relationship
(2) If subparagraph (1)(c)(i) applies, the commercial radio broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.
(3) It is sufficient if the statement under subsection (2) is to the effect that there is a cross-media relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.
(4) If subparagraph (1)(c)(ii) applies, the commercial radio broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.
(5) It is sufficient if the statement under subsection (4) is to the effect that there is a cross-media relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5B Disclosure of cross-media relationships
Section 61BE
168 Broadcasting Services Act 1992
How statement is to be broadcast
(6) A statement under subsection (2) or (4) must be broadcast in a way that will adequately bring it to the attention of a reasonable person who may have listened to the broadcast mentioned in paragraph (1)(c).
(7) The regulations may provide that subsection (6) is taken to have been complied with if the statement is broadcast in the manner, and at the time, specified in, or ascertained in accordance with, the regulations.
61BE Disclosure of cross-media relationship by commercial radio broadcasting licensee—regular disclosure method
Scope
(1) This section applies if: (a) a person is in a position to exercise control of each media
operation in a set of media operations; and (b) a commercial radio broadcasting licence is in the set; and (c) a notice under subsection 61BC(1) is in force in relation to
the commercial radio broadcasting licensee.
Requirement to disclose cross-media relationship
(2) If a commercial television broadcasting licence is in the set, the commercial radio broadcasting licensee must regularly broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.
(3) It is sufficient if the statement under subsection (2) is to the effect that there is a cross-media relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.
(4) If a newspaper is in the set, the commercial radio broadcasting licensee must regularly broadcast a statement describing (whether in summary form or otherwise) the relationship between the
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Disclosure of cross-media relationships Division 5B
Section 61BF
Broadcasting Services Act 1992 169
commercial radio broadcasting licensee and the publisher of the newspaper.
(5) It is sufficient if the statement under subsection (4) is to the effect that there is a cross-media relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.
How statement is to be broadcast
(6) Statements under subsection (2) or (4) are to be broadcast in a way, and with a frequency, that is reasonably likely to ensure that the audience of the commercial radio broadcasting service during prime-time hours is aware that:
(a) in the case of statements under subsection (2)—there is a relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee; or
(b) in the case of statements under subsection (4)—there is a relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.
(7) A commercial radio broadcasting licensee is taken to have complied with subsection (6) if:
(a) the statement is broadcast at least once each day during prime-time hours; and
(b) the statement is broadcast in a way that will adequately bring it to the attention of a reasonable person who may have listened to the broadcast of the statement.
(8) The regulations may provide that a commercial radio broadcasting licensee is taken to have complied with subsection (6) if the statement is broadcast in the manner, and at the times, ascertained in accordance with the regulations.
61BF Disclosure of cross-media relationship by publisher of newspaper
Scope
(1) This section applies if:
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5B Disclosure of cross-media relationships
Section 61BF
170 Broadcasting Services Act 1992
(a) a person is in a position to exercise control of each media operation in a set of media operations; and
(b) a newspaper is in the set; and (c) material published in a particular edition of the newspaper is
wholly or partly about: (i) the business affairs of a commercial television
broadcasting licensee whose licence is in the set; or (ii) the business affairs of a commercial radio broadcasting
licensee whose licence is in the set. Note: For business affairs, see section 61BH.
Requirement to disclose cross-media relationship
(2) If subparagraph (1)(c)(i) applies, the publisher of the newspaper must cause to be published in the same edition of the newspaper a statement describing (whether in summary form or otherwise) the relationship between the publisher and the commercial television broadcasting licensee.
(3) It is sufficient if the statement under subsection (2) is to the effect that there is a cross-media relationship between the publisher and the commercial television broadcasting licensee.
(4) If subparagraph (1)(c)(ii) applies, the publisher of the newspaper must cause to be published in the same edition of the newspaper a statement describing (whether in summary form or otherwise) the relationship between the publisher and the commercial radio broadcasting licensee.
(5) It is sufficient if the statement under subsection (4) is to the effect that there is a cross-media relationship between the publisher and the commercial radio broadcasting licensee.
How statement is to be published
(6) A statement under subsection (2) or (4) must be published in a way that will adequately bring it to the attention of a reasonable person who may have read the material mentioned in paragraph (1)(c).
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Disclosure of cross-media relationships Division 5B
Section 61BG
Broadcasting Services Act 1992 171
(7) The regulations may provide that subsection (6) is taken to have been complied with if the statement is published in the manner specified in, or ascertained in accordance with, the regulations.
Offence
(8) A person is guilty of an offence if: (a) the person is subject to a requirement under this section; and (b) the person omits to do an act; and (c) the omission breaches the requirement.
Penalty for contravention of this subsection: 2,000 penalty units.
61BG Exception—political communication
Sections 61BB, 61BD, 61BE and 61BF do not apply to the extent (if any) that they would infringe any constitutional doctrine of implied freedom of political communication.
61BH Matter or material about the business affairs of a broadcasting licensee or newspaper publisher
Matter or material about business affairs—what is included and excluded
(1) A reference in this Division to matter or material that is wholly or partly about the business affairs of a commercial television broadcasting licensee, a commercial radio broadcasting licensee or a newspaper publisher:
(a) includes a reference to matter or material, where, having regard to:
(i) the nature of the matter or material; and (ii) the way in which the matter or material is presented;
it would be reasonable to conclude that the object, or one of the objects, of the broadcast of the matter or the publication of the material, as the case may be, was to: (iii) promote; or (iv) otherwise influence members of the public, or of a
section of the public, to view, to listen to, or to read;
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5B Disclosure of cross-media relationships
Section 61BH
172 Broadcasting Services Act 1992
matter broadcast, or to be broadcast, by the licensee, or material published, or to be published, in the newspaper, as the case may be; and
(b) does not include a reference to: (i) a journalistic acknowledgment of a program or article as
being the source of particular information; or (ii) advertising matter or advertising material, where a
reasonable person would be able to distinguish the advertising matter or advertising material from other matter or material; or
(iii) a program guide (see subsection (2)); or (iv) exempt matter or exempt material (see subsection (4)).
Program guide
(2) For the purposes of this section, a program guide is matter or material that consists of no more than:
(a) a schedule of: (i) the television programs provided by 2 or more
television broadcasting services; or (ii) the radio programs provided by 2 or more radio
broadcasting services; or (b) a combination of:
(i) a schedule covered by paragraph (a); and (ii) items of factual information, and/or items of comment,
about some or all of the programs in the schedule, where each item is brief;
where the matter or material does not single out one of those services for special promotion.
(3) For the purposes of subsection (2): (a) a television broadcasting service is:
(i) a commercial broadcasting service that provides television programs; or
(ii) a national broadcasting service that provides television programs; and
(b) a radio broadcasting service is:
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Disclosure of cross-media relationships Division 5B
Section 61BH
Broadcasting Services Act 1992 173
(i) a commercial broadcasting service that provides radio programs; or
(ii) a national broadcasting service that provides radio programs.
Exempt matter or exempt material
(4) The Minister may, by legislative instrument, determine that: (a) matter included in a specified class of matter is exempt
matter for the purposes of this section; and (b) material included in a specified class of material is exempt
material for the purposes of this section.
(5) A determination under subsection (4) has effect accordingly.
Advertising
(6) This section does not, by implication, affect the meaning of the expression advertising when used in any other provision of this Act.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5C Local news and information requirements for regional commercial radio broadcasting licensees
Section 61CA
174 Broadcasting Services Act 1992
Division 5C—Local news and information requirements for regional commercial radio broadcasting licensees
Subdivision A—Introduction
61CA Definitions
In this Division:
approved local content plan means an approved local content plan under Subdivision C.
benchmark year means: (a) in relation to a regional commercial radio broadcasting
licence where a single trigger event has occurred—the 52-week period ending on the Saturday before the day on which the trigger event occurred; and
(b) in relation to a regional commercial radio broadcasting licence where 2 or more trigger events have occurred—the 52-week period ending on the Saturday before the day on which the most recent trigger event occurred.
community service announcement means community information, or community promotional material, for the broadcast of which the licensee does not receive any consideration in cash or in kind.
controller has the same meaning as in Division 5A.
designated local content program means a program about matters of local significance, other than:
(a) a news bulletin; or (aa) a weather bulletin; or (b) a community service announcement; or (c) an emergency warning.
draft local content plan means a draft local content plan under Subdivision C.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Local news and information requirements for regional commercial radio broadcasting licensees Division 5C
Section 61CA
Broadcasting Services Act 1992 175
eligible local news bulletins means local news bulletins that meet the following requirements:
(a) the bulletins are broadcast on at least 5 days during the week; (b) the bulletins broadcast on each of those days have a total
duration of at least 12.5 minutes; (c) the bulletins are broadcast during prime-time hours; (d) the bulletins adequately reflect matters of local significance; (e) none of the bulletins consists wholly of material that has
previously been broadcast in the licence area concerned.
eligible local weather bulletins means local weather bulletins that meet the following requirements:
(a) the bulletins are broadcast on at least 5 days during the week; (b) the bulletins are broadcast during prime-time hours.
emergency service agency means: (a) a police force or service; or (b) a fire service; or (c) a body that runs an emergency service specified in the
regulations.
local (except in sections 61CR and 61CS) has a meaning affected by section 61CC.
metropolitan licence area means: (a) a licence area in which is situated the General Post Office of
the capital city of: (i) New South Wales; or
(ii) Victoria; or (iii) Queensland; or (iv) Western Australia; or (v) South Australia; or
(b) the licence area known as Western Suburbs Sydney RA1.
news bulletin means a regularly scheduled news bulletin.
prime-time hours means the hours:
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5C Local news and information requirements for regional commercial radio broadcasting licensees
Section 61CAA
176 Broadcasting Services Act 1992
(a) beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and
(b) ending at 10 am on the same day or, if another time is prescribed, ending at that prescribed time on the same day.
regional commercial radio broadcasting licence means a commercial radio broadcasting licence that has a regional licence area.
regional licence area means a licence area that is not a metropolitan licence area.
Register has the same meaning as in Division 5A.
registrable media group has the same meaning as in Division 5A.
trigger event has the meaning given by section 61CB.
weather bulletin means a regularly scheduled weather bulletin that is transmitted:
(a) as a stand-alone bulletin; or (b) in conjunction with a news bulletin.
week means a 7-day period that begins on a Sunday.
61CAA This Division does not apply in relation to certain licences
This Division does not apply in relation to: (a) a remote area service radio licence; or (b) a regional racing service radio licence.
Note: This Division does not apply to a regional commercial radio broadcasting licence allocated under subsection 40(1): see section 50A.
61CB Trigger event
Transfer of licence
(1) For the purposes of this Division, if:
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Local news and information requirements for regional commercial radio broadcasting licensees Division 5C
Section 61CB
Broadcasting Services Act 1992 177
(a) a regional commercial radio broadcasting licence is held by a person; and
(b) the person transfers the licence to another person; and (c) the transfer occurred before the commencement of this
paragraph; the transfer of the licence is a trigger event for the licence.
Change in control of licence
(1A) For the purposes of this Division, if either of the following events (a control event) happens after the commencement of this subsection:
(a) a person starts to be in a position to exercise control of a regional commercial radio broadcasting licence;
(b) a person ceases to be in a position to exercise control of a regional commercial radio broadcasting licence;
the control event is a trigger event for the licence.
(1B) Subsection (1A) does not apply to a control event if: (a) the control event is attributable to a transfer of shares from
one person (the first person) to another person (the second person); and
(b) there is no consideration for the transfer; and (c) the second person is a near relative of the first person.
Note: For near relative, see subsection 6(1).
(1C) Subsection (1A) does not apply to a control event if the control event is attributable to circumstances beyond the control of each person who was, immediately before the control event occurred, in a position to exercise control of the regional commercial radio broadcasting licence concerned.
(1D) The regulations may provide for exemptions from subsection (1A).
Formation of new registrable media group
(2) For the purposes of this Division, if: (a) a registrable media group comes into existence; and
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5C Local news and information requirements for regional commercial radio broadcasting licensees
Section 61CB
178 Broadcasting Services Act 1992
(b) the media group is not already entered in the Register; and (c) a regional commercial radio broadcasting licence is in the
group; the coming into existence of the group is a trigger event for the licence.
(2A) Subsection (2) does not apply to a registrable media group that comes into existence after the commencement of this subsection only because the ACMA varies, under section 29, the designation of a licence area.
(2B) Subsection (2) does not apply to a registrable media group that comes into existence after the commencement of this subsection only because the ACMA makes or varies a determination, under section 30, of the licence area population of a licence area.
(2C) The regulations may provide for exemptions from subsection (2).
Change of controller of registrable media group
(3) For the purposes of this Division, if: (a) either:
(i) a person who is not a controller of a registrable media group becomes a controller of the group; or
(ii) a controller of a registrable media group ceases to be a controller of the group; and
(b) a regional commercial radio broadcasting licence is in the group;
the change of controller is a trigger event for the licence.
(4) Subsection (3) does not apply to a change of controller of a registrable media group if the change of controller is attributable to circumstances beyond the control of each person who was, immediately before the change occurred, a controller of the registrable media group.
(5) The regulations may provide for exemptions from subsection (3).
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Local news and information requirements for regional commercial radio broadcasting licensees Division 5C
Section 61CC
Broadcasting Services Act 1992 179
61CC What is local?
(1) The ACMA may, by legislative instrument, define what is meant by the expression local for the purposes of the application of:
(a) this Division (other than sections 61CR and 61CS); or (b) a specified provision of this Division (other than
sections 61CR and 61CS); to a specified licence area.
(2) In making an instrument under subsection (1), the ACMA must have regard to:
(a) the areas where separate programming is provided; and (b) such other matters (if any) as the ACMA considers relevant.
Note: Program includes advertising or sponsorship matter—see the definition of program in subsection 6(1).
Subdivision B—Minimum service standards for local news and information
61CD Licensee must meet minimum service standards for local news and information
(1) If a trigger event for a regional commercial radio broadcasting licence occurs, then, after the occurrence of the trigger event, the licensee must meet:
(a) minimum service standards for local news; and (aa) minimum service standards for local weather; and (b) minimum service standards for local community service
announcements; and (c) minimum service standards for emergency warnings; and (d) if a declaration is in force under subsection 61CE(6)—
minimum service standards for designated local content programs.
(2) A licensee (the relevant licensee) is not required to meet any of the minimum service standards referred to in subsection (1):
(a) if:
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5C Local news and information requirements for regional commercial radio broadcasting licensees
Section 61CE
180 Broadcasting Services Act 1992
(i) the ACMA, by legislative instrument, specifies a period, in relation to one or more specified regional commercial radio broadcasting licensees; and
(ii) the period does not exceed 5 weeks; and (iii) the licensees specified in the instrument consist of or
include the relevant licensee; on a day during that period; or
(b) if the ACMA, by legislative instrument, specifies a period that does not exceed 5 weeks—on a day during that period; or
(c) if neither paragraph (a) nor (b) applies—on a day during the 5-week period beginning on the second Sunday in December each year.
A period specified under paragraph (a) or (b) may be a recurring period.
61CE Minimum service standards for local news and information
Local news
(1) For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for local news during a particular week if, during that week, the number of eligible local news bulletins broadcast by the licensee is at least:
(a) the local news target number; or (b) if the average weekly number of eligible local news bulletins
broadcast under the licence during the benchmark year is a number greater than the local news target number—the greater number.
(2) For the purposes of subsection (1), the local news target number is:
(a) 5; or (b) if the Minister, by legislative instrument, declares that a
greater number is the local news target number—the greater number.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Local news and information requirements for regional commercial radio broadcasting licensees Division 5C
Section 61CE
Broadcasting Services Act 1992 181
Local weather
(2A) For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for local weather during a particular week if, during that week, the number of eligible local weather bulletins broadcast by the licensee is at least the local weather target number.
(2B) For the purposes of subsection (2A), the local weather target number is:
(a) 5; or (b) if the Minister, by legislative instrument, declares that a
greater number is the local weather target number—the greater number.
Local community service announcements
(3) For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for local community service announcements during a particular week if, during that week, the number of local community service announcements broadcast by the licensee is at least the community service target number.
(4) For the purposes of subsection (3), the community service target number is:
(a) 1; or (b) if the Minister, by legislative instrument, declares that a
greater number is the local community service target number—the greater number.
Emergency warnings
(5) For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for emergency warnings during a particular week if:
(a) on one or more occasions during the week, one or more emergency service agencies asked the licensee to broadcast emergency warnings, and the licensee broadcast those
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5C Local news and information requirements for regional commercial radio broadcasting licensees
Section 61CF
182 Broadcasting Services Act 1992
warnings as and when asked to do so by those emergency service agencies; or
(b) there was no occasion during the week when an emergency service agency asked the licensee to broadcast an emergency warning.
Designated local content programs
(6) For the purposes of this Subdivision, the Minister may, by legislative instrument, declare that a regional commercial radio broadcasting licence meets the minimum service standards for designated local content programs during a particular week if, during that week, the licensee meets such requirements in relation to designated local content programs as are specified in the declaration.
Subdivision C—Local content plans
61CF Licensee must submit draft local content plan to the ACMA
(1) If a trigger event for a regional commercial radio broadcasting licence occurs, the licensee must give the ACMA:
(a) a draft local content plan for the licence; and (b) a statement setting out such information about the licensee’s
broadcasting operations as the ACMA requires; within 90 days after the day on which the trigger event occurs.
(2) If the licensee does not comply with subsection (1), the ACMA may, by legislative instrument, determine that a plan in the terms specified in the determination is the approved local content plan for the licence.
Replacement of approved local content plan
(3) If an approved local content plan (the original plan) for a commercial radio broadcasting licence is in force:
(a) a draft local content plan given under subsection (1) for the licence must be expressed to replace the original plan; and
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Local news and information requirements for regional commercial radio broadcasting licensees Division 5C
Section 61CG
Broadcasting Services Act 1992 183
(b) if the draft local content plan becomes an approved local content plan for the licence—the original plan ceases to be in force.
(4) If: (a) the ACMA makes a determination under subsection (2) in
relation to a commercial radio broadcasting licence; and (b) an approved local content plan (the original plan) for the
licence was in force immediately before the determination takes effect;
then: (c) the approved local content plan as determined by the ACMA
replaces the original plan; and (d) the original plan ceases to be in force.
61CG Content of draft or approved local content plan
A draft or approved local content plan for a regional commercial radio broadcasting licence must set out how the licensee will comply with section 61CD.
61CH Approval of draft local content plan
(1) If a commercial radio broadcasting licensee gives the ACMA a draft local content plan under section 61CF, the ACMA must:
(a) approve the plan; or (b) refuse to approve the plan.
Approval of plan
(2) In deciding whether to approve a draft local content plan, the ACMA must have regard to:
(a) whether the plan is adequate; and (b) whether the plan is sufficiently detailed; and (c) any relevant information set out in the paragraph 61CF(1)(b)
statement; and (d) such other matters (if any) as the ACMA considers relevant.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5C Local news and information requirements for regional commercial radio broadcasting licensees
Section 61CJ
184 Broadcasting Services Act 1992
(3) If the ACMA approves the draft local content plan, the plan becomes an approved local content plan for the licence.
(4) If the ACMA approves the draft local content plan, the ACMA must give the licensee a written notice setting out the decision.
Refusal to approve plan
(5) If the ACMA refuses to approve the draft local content plan, the ACMA may, by legislative instrument, determine that a plan in the terms specified in the determination is the approved local content plan for the licence.
(6) If the ACMA refuses to approve the draft local content plan, the ACMA must give the licensee a written notice setting out the reasons for the refusal.
Occurrence of trigger event when ACMA’s decision is pending
(7) If: (a) a commercial radio broadcasting licensee gives the ACMA a
draft local content plan under section 61CF as the result of the occurrence of a trigger event for the licence; and
(b) another trigger event for the licence occurs before the ACMA makes a decision under subsection (1) in relation to the plan;
then: (c) the ACMA is taken to have refused to approve the plan; and (d) subsections (5) and (6) do not apply to that refusal.
61CJ Register of approved local content plans
(1) The ACMA is to maintain a Register in which the ACMA includes approved local content plans as in force from time to time.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Local news and information requirements for regional commercial radio broadcasting licensees Division 5C
Section 61CK
Broadcasting Services Act 1992 185
61CK Approved local content plan must be varied if minimum service standards are imposed or increased
(1) This section applies if: (a) an approved local content plan (the current plan) for a
regional commercial radio broadcasting licence is in force; and
(b) the Minister makes a declaration under: (i) paragraph 61CE(2)(b); or
(ia) paragraph 61CE(2B)(b); or (ii) paragraph 61CE(4)(b); or
(iii) subsection 61CE(6); and (c) in the case of a declaration under paragraph 61CE(2)(b)—the
effect of the declaration is to raise the licensee’s minimum service standards for local news.
(2) The licensee must give the ACMA: (a) a draft variation of the current plan; and (b) a statement setting out such information about the licensee’s
broadcasting operations as the ACMA requires; within 90 days after the day on which the declaration is made.
(3) If the licensee does not comply with subsection (2), the ACMA may, by legislative instrument, vary the current plan.
61CL Approved local content plan may be varied by the licensee
If an approved local content plan (the current plan) for a regional commercial radio broadcasting licence is in force, the licensee may give the ACMA:
(a) a draft variation of the current plan; and (b) a statement setting out such information about the licensee’s
broadcasting operations as the ACMA requires.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5C Local news and information requirements for regional commercial radio broadcasting licensees
Section 61CM
186 Broadcasting Services Act 1992
61CM Approval of draft variation
(1) If, under section 61CK or 61CL, a commercial radio broadcasting licensee gives the ACMA a draft variation of an approved local content plan (the current plan), the ACMA must:
(a) approve the variation; or (b) refuse to approve the variation.
Approval of variation
(2) The ACMA must not approve the variation unless the ACMA is satisfied that, if the licensee were to give the ACMA a draft local content plan in the same terms as the current plan as proposed to be varied, the ACMA would approve that draft.
(3) If the ACMA approves the variation, the current plan is varied accordingly.
(4) If the ACMA approves the variation, the ACMA must give the licensee a written notice setting out the decision.
Refusal to approve variation
(5) If the ACMA refuses to approve the variation, the ACMA must give the licensee a written notice setting out the reasons for the refusal.
(6) If the ACMA refuses to approve the variation, the ACMA may, by legislative instrument, vary the current plan.
Occurrence of trigger event when ACMA’s decision is pending
(7) If: (a) under section 61CK or 61CL, a commercial radio
broadcasting licensee gives the ACMA a draft variation of an approved local content plan; and
(b) a trigger event for the licence occurs after the receipt of the variation but before the ACMA makes a decision under subsection (1) in relation to the variation;
then:
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Local news and information requirements for regional commercial radio broadcasting licensees Division 5C
Section 61CN
Broadcasting Services Act 1992 187
(c) the ACMA is taken to have refused to approve the variation; and
(d) subsections (5) and (6) do not apply to that refusal.
61CN ACMA may review approved local content plan
(1) If an approved local content plan for a regional commercial radio broadcasting licence is in force, the ACMA must review the plan at least once every 3 years.
(2) If, after such a review, the ACMA considers that the approved local content plan should be varied, the ACMA may, by legislative instrument, vary the plan.
61CP Compliance with approved local content plan
If an approved local content plan for a regional commercial radio broadcasting licence is in force, the licensee must take all reasonable steps to ensure that the plan is complied with.
61CPA Licensee must submit annual compliance report
(1) This section applies if an approved local content plan for a regional commercial radio broadcasting licence was in force during the whole or a part of a financial year.
(2) The regional commercial radio broadcasting licensee must, within 3 months after the end of the financial year, give the ACMA a report about the licensee’s compliance with the approved local content plan during the whole or the part, as the case may be, of the financial year.
(3) A report under subsection (2) must: (a) be in a form approved in writing by the ACMA; and (b) set out such information as the ACMA requires.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5C Local news and information requirements for regional commercial radio broadcasting licensees
Section 61CQ
188 Broadcasting Services Act 1992
61CQ Minister may direct the ACMA about the exercise of its powers
(1) The Minister may give the ACMA a written direction about the exercise of the powers conferred on the ACMA by this Subdivision.
(2) The ACMA must comply with a direction under subsection (1).
Subdivision D—Other local content requirements
61CR Minister may direct the ACMA to conduct an investigation about other local content requirements
(1) The Minister may give the ACMA a written direction requiring the ACMA to conduct an investigation under section 170 into:
(a) whether the ACMA should exercise its powers under section 43 to impose conditions requiring regional commercial radio broadcasting licensees to broadcast programs about matters of local significance; and
(b) if so, the content of those conditions.
(2) The ACMA must comply with a direction under subsection (1).
(3) This section does not limit the powers conferred on the ACMA by section 43 or 170.
(4) This section does not limit the powers conferred on the Minister by section 61CS.
61CS Minister may direct the ACMA to impose licence conditions relating to local content
(1) The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose conditions requiring regional commercial radio broadcasting licensees to broadcast programs about matters of local significance.
(2) The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose one or
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Local news and information requirements for regional commercial radio broadcasting licensees Division 5C
Section 61CT
Broadcasting Services Act 1992 189
more specified conditions requiring regional commercial radio broadcasting licensees to broadcast programs about matters of local significance.
(3) The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose conditions requiring a specified regional commercial radio broadcasting licensee to broadcast programs about matters of local significance.
(4) The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose one or more specified conditions requiring a specified regional commercial radio broadcasting licensee to broadcast programs about matters of local significance.
(5) The ACMA must comply with a direction under subsection (1), (2), (3) or (4).
(6) This section does not limit the powers conferred on the ACMA by section 43.
61CT Regular reviews of local content requirements
(1) At least once every 3 years, the Minister must cause to be conducted a review of the following matters:
(a) the operation of sections 43B and 43C; (b) the operation of this Division; (c) the operation of paragraph 8(2)(c) of Schedule 2; (d) whether sections 43B and 43C should be amended; (e) whether this Division should be amended; (f) whether paragraph 8(2)(c) of Schedule 2 should be amended.
(2) For the purposes of facilitating the conduct of a review under subsection (1), the ACMA must make available information about regional commercial radio broadcasting licensees’ compliance with:
(a) licence conditions imposed as a result of section 43B or 43C; and
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 5C Local news and information requirements for regional commercial radio broadcasting licensees
Section 61CT
190 Broadcasting Services Act 1992
(b) licence conditions imposed as a result of an investigation directed under section 61CR; and
(c) licence conditions imposed as a result of a direction under section 61CS; and
(d) the licence condition set out in paragraph 8(2)(c) of Schedule 2.
(3) The Minister may give the ACMA a written direction requiring the ACMA to make available specified information for the purposes of facilitating the conduct of a review under subsection (1).
(4) The ACMA must comply with a direction under subsection (3).
(5) The Minister must cause to be prepared a report of a review under subsection (1).
(6) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the report.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Notification provisions Division 6
Section 62
Broadcasting Services Act 1992 191
Division 6—Notification provisions
62 Requirement to notify control and directorships
Notification by licensee—general
(1) Each commercial television broadcasting licensee, commercial radio broadcasting licensee and datacasting transmitter licensee must, within 3 months after the end of each financial year, give to the ACMA in writing:
(a) details of the persons who, to the knowledge of the licensee, were in a position to exercise control of the licence at the end of that financial year; and
(b) the name of each person who was a director of the licensee at the end of that financial year.
(2) The details are to be provided in a form approved in writing by the ACMA.
Notification by restricted datacasting licensee
(2A) Each restricted datacasting licensee must, within 3 months after the end of each financial year that ends during the digital radio moratorium period for the licence area of a commercial radio broadcasting licence, give to the ACMA in writing:
(a) details of the persons who, to the knowledge of the restricted datacasting licensee, were in a position to exercise control of the restricted datacasting licence at the end of that financial year; and
(b) the name of each person who was a director of the restricted datacasting licensee at the end of that financial year.
(2B) The details are to be provided in a form approved in writing by the ACMA.
Notification by publisher of newspaper
(3) Each publisher of a newspaper that is associated with the licence area of a commercial television broadcasting licence or a
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 6 Notification provisions
Section 63
192 Broadcasting Services Act 1992
commercial radio broadcasting licence must, within 3 months after the end of each financial year, give to the ACMA in writing:
(a) details of the persons who, to the knowledge of the publisher, were in a position to exercise control of the newspaper at the end of that financial year; and
(b) if the publisher is a company—the name of each person who was a director of the company at the end of that financial year.
(4) The details are to be provided in a form approved in writing by the ACMA.
Offence
(5) A person commits an offence if: (a) the person is subject to a requirement under subsection (1),
(2A) or (3); and (b) the person omits to do an act; and (c) the omission breaches the requirement.
Penalty for contravention of this subsection: (a) if the breach relates to a commercial television broadcasting
licence, a datacasting transmitter licence or a newspaper— 500 penalty units; or
(b) otherwise—50 penalty units.
63 Requirement to notify changes in control
Notification by licensee—general
(1) If a commercial television broadcasting licensee, commercial radio broadcasting licensee or datacasting transmitter licensee becomes aware that:
(a) a person who was not in a position to exercise control of the licence has become in a position to exercise control of the licence; or
(b) a person who was in a position to control the licence has ceased to be in that position;
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Notification provisions Division 6
Section 63
Broadcasting Services Act 1992 193
the licensee must, within 5 days after becoming so aware, notify the ACMA in writing of that event.
(2) The details are to be provided in a form approved in writing by the ACMA.
Notification by restricted datacasting licensee
(2A) If, during the digital radio moratorium period for the licence area of a commercial radio broadcasting licence, a restricted datacasting licensee becomes aware that:
(a) a person who was not in a position to exercise control of the restricted datacasting licence has become in a position to exercise control of the restricted datacasting licence; or
(b) a person who was in a position to control the restricted datacasting licence has ceased to be in that position;
the restricted datacasting licensee must, within 5 days after becoming so aware, notify the ACMA in writing of that event.
(2B) The details are to be provided in a form approved in writing by the ACMA.
Notification by publisher of newspaper
(3) If the publisher of a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence becomes aware that:
(a) a person who was not in a position to exercise control of the newspaper has become in a position to exercise control of the newspaper; or
(b) a person who was in a position to control the newspaper has ceased to be in that position;
the publisher of the newspaper must, within 5 days after becoming so aware, notify the ACMA in writing of that event.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 6 Notification provisions
Section 64
194 Broadcasting Services Act 1992
(4) The details are to be provided in a form approved in writing by the ACMA.
Offence
(5) A person commits an offence if: (a) the person is subject to a requirement under subsection (1),
(2A) or (3); and (b) the person omits to do an act; and (c) the omission breaches the requirement.
Penalty for contravention of this subsection: (a) if the breach relates to a commercial television broadcasting
licence, a datacasting transmitter licence or a newspaper— 500 penalty units; or
(b) otherwise—50 penalty units.
64 Person who obtains control of a licence or newspaper must notify the ACMA
Notification by controller of licence—general
(1) If a person who was not in a position to exercise control of a commercial television broadcasting licence, a commercial radio broadcasting licence or a datacasting transmitter licence becomes aware that that person is in a position to exercise control of the licence, the person must, within 5 days after becoming so aware, notify the ACMA in writing of that position.
(2) The details are to be provided in a form approved in writing by the ACMA.
Notification by controller of restricted datacasting licence
(2A) If, during the digital radio moratorium period for the licence area of a commercial radio broadcasting licence, a person who was not in a position to exercise control of a restricted datacasting licence becomes aware that that person is in a position to exercise control of the restricted datacasting licence, the person must, within 5 days
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Notification provisions Division 6
Section 65
Broadcasting Services Act 1992 195
after becoming so aware, notify the ACMA in writing of that position.
(2B) The details are to be provided in a form approved in writing by the ACMA.
Notification by controller of newspaper
(3) If a person who was not in a position to exercise control of a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence becomes aware that the person is in a position to exercise control of the newspaper, the person must, within 5 days after becoming so aware, notify the ACMA in writing of that position.
(4) The details are to be provided in a form approved in writing by the ACMA.
Offence
(5) A person commits an offence if: (a) the person is subject to a requirement under subsection (1),
(2A) or (3); and (b) the person omits to do an act; and (c) the omission breaches the requirement.
Penalty for contravention of this subsection: (a) if the breach relates to a commercial television broadcasting
licence, a datacasting transmitter licence or a newspaper— 500 penalty units; or
(b) otherwise—50 penalty units.
65 Requirement to notify control and directorships as at 1 February 2007
Notification by licensee
(1) Each commercial television broadcasting licensee and commercial radio broadcasting licensee must, within 5 days after 1 February 2007, give to the ACMA in writing:
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 6 Notification provisions
Section 65
196 Broadcasting Services Act 1992
(a) details of the persons who, to the knowledge of the licensee, were in a position to exercise control of the licence at the start of 1 February 2007; and
(b) the name of each person who was a director of the licensee at the start of 1 February 2007.
(2) The details are to be provided in a form approved in writing by the ACMA.
Notification by publisher of newspaper
(3) If, at the start of 1 February 2007, a newspaper is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence, the publisher of the newspaper must, within 5 days after 1 February 2007, give to the ACMA in writing:
(a) details of the persons who, to the knowledge of the publisher, were in a position to exercise control of the newspaper at the start of 1 February 2007; and
(b) if the publisher is a company—the name of each person who was a director of the company at the start of 1 February 2007.
(4) The details are to be provided in a form approved in writing by the ACMA.
Notification by controller
(5) If, at the start of 1 February 2007, a person is in a position to exercise control of:
(a) a commercial television broadcasting licence; or (b) a commercial radio broadcasting licence; or (c) a newspaper that is associated with the licence area of a
commercial television broadcasting licence or a commercial radio broadcasting licence;
the person must, within 5 days after 1 February 2007, notify the ACMA in writing of that position.
(6) The details are to be provided in a form approved in writing by the ACMA.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Notification provisions Division 6
Section 65A
Broadcasting Services Act 1992 197
Offence
(7) A person commits an offence if: (a) the person is subject to a requirement under subsection (1),
(3) or (5); and (b) the person omits to do an act; and (c) the omission breaches the requirement.
Penalty for contravention of this subsection: (a) if the breach relates to a commercial television broadcasting
licence or a newspaper—500 penalty units; or (b) otherwise—50 penalty units.
65A Strict liability offences
An offence against section 62, 63, 64 or 65 is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.
65B Designated infringement notice provisions
Sections 62, 63, 64 and 65 are designated infringement notice provisions.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 7 Approval of temporary breaches
Section 66
198 Broadcasting Services Act 1992
Division 7—Approval of temporary breaches
66 Offence for breaches without approval
(1) If: (a) a transaction takes place that places a person in breach of a
provision of Division 2 or 3; and (b) the person knew, or ought reasonably to have known, that a
result of the transaction would be to place the person in breach of a provision of Division 2 or 3; and
(c) the person was a party to the transaction or was in a position to prevent the transaction taking place; and
(d) the ACMA has not approved the breach under section 67; the person is guilty of an offence.
Penalty: (e) if the breach relates to a commercial television broadcasting
licence or datacasting transmitter licence—20,000 penalty units; or
(f) if the breach relates to a commercial radio broadcasting licence—2,000 penalty units.
(1A) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the provision breached was a provision of Division 2 or 3.
(2) A person who breaches subsection (1) is guilty of a separate offence in respect of each day (including a day of a conviction under this subsection or any subsequent day) during which the breach of Division 2 or 3 continues.
(3) A prosecution for an offence under this section against a person in relation to a transaction cannot be commenced if the ACMA has given the person a notice under section 70 in relation to the transaction and the time for compliance with the notice has not expired.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Approval of temporary breaches Division 7
Section 67
Broadcasting Services Act 1992 199
67 Applications for prior approval of temporary breaches
(1) A person may, before a transaction takes place or an agreement is entered into that would place a person in breach of a provision of Division 2 or 3, make an application to the ACMA for an approval of the breach.
(2) An application is to be made in accordance with a form approved in writing by the ACMA.
(3) If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(4) If, after receiving an application, the ACMA is satisfied that: (a) if the transaction took place or the agreement was entered
into, it would place a person in breach of a provision of Division 2 or 3; and
(b) the person will take action to ensure that the breach of that provision ceases; and
(c) the breach is incidental to the objectives of the transaction or agreement;
the ACMA may, by notice in writing given to the applicant, approve the breach arising as a result of the transaction or agreement and specify a period during which action must be taken to ensure that the breach ceases, being a period that commences on the day on which the transaction takes place or the agreement is entered into.
(5) The period specified in the notice must be 6 months, one year or 2 years.
(6) The ACMA may specify in a notice the action that the ACMA considers the person is to take so that the person is no longer in breach of the relevant provision.
(7) If the ACMA does not, within 45 days after: (a) receiving the application; or
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 7 Approval of temporary breaches
Section 68
200 Broadcasting Services Act 1992
(b) if the ACMA has requested further information—receiving that further information;
approve or refuse to approve the breach arising as a result of the transaction or agreement, the ACMA is to be taken to have approved the breach and allowed a period of 2 years before which the breach must cease.
68 Extension of time for compliance with notice
(1) A person who has been given a notice under section 67 may, within 3 months before the end of the period specified in the notice, apply in writing to the ACMA for an extension of that period.
(2) The ACMA is not required to grant an extension, but may do so if, in its opinion, an extension is appropriate in all the circumstances.
(3) If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(4) The ACMA must not grant more than one extension, and the period of any extension must not exceed:
(a) the period originally specified in the notice; or (b) one year;
whichever is the lesser.
(5) In deciding whether to grant an extension to an applicant, the ACMA is to have regard to:
(a) the endeavours that the applicant made in attempting to comply with the notice; and
(b) the difficulties that the applicant experienced in attempting to comply with the notice;
but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.
(6) If the ACMA does not, within 45 days after: (a) receiving the application; or
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Approval of temporary breaches Division 7
Section 69
Broadcasting Services Act 1992 201
(b) if the ACMA has requested further information—receiving that further information;
extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:
(c) the period originally specified in the notice; or (d) one year;
whichever is the lesser.
69 Breach of notice under section 67 to constitute an offence
A person who fails to comply with a notice under section 67 is guilty of an offence.
Penalty: (a) if the breach relates to a commercial television broadcasting
licence or datacasting transmitter licence—20,000 penalty units; or
(b) if the breach relates to a commercial radio broadcasting licence—2,000 penalty units.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 8 Action by the ACMA
Section 70
202 Broadcasting Services Act 1992
Division 8—Action by the ACMA
70 Notices by the ACMA
(1) If the ACMA is satisfied that a person is in breach of a provision of Division 2 or 3, the ACMA may, by notice in writing given to:
(a) the person; or (b) if the person is not the licensee and the breach is one that can
be remedied by the licensee—the licensee; direct the person or the licensee to take action so that the person is no longer in breach of that provision.
(2) The ACMA is not to give a notice to a person under subsection (1) in relation to a breach if an approval under section 67 has been given in respect of the breach and the period specified under that section, or an extension of that period, has not expired.
(3) The notice is to specify a period during which the person must take action to ensure that the person is no longer in that position.
(4) The period must be one month, 6 months, one year or 2 years.
(5) If the ACMA is satisfied that the breach was deliberate and flagrant, the period specified in the notice must be one month.
(6) If the ACMA gives a notice under subsection (1) in respect of a breach that the ACMA had approved under section 67, the ACMA must specify a period of one month in the notice under subsection (1).
(7) If the ACMA is satisfied that the person breached the relevant provision as a result of the actions of other persons none of whom is an associate of the person, a period of one year or 2 years must be specified, but such a period must not be specified in other circumstances.
(8) The Parliament recognises that, if a period of one month is specified in a notice, the person to whom the notice is given or another person may be required to dispose of shares in a way, or otherwise make arrangements, that could cause the person a
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Action by the ACMA Division 8
Section 71
Broadcasting Services Act 1992 203
considerable financial disadvantage. Such a result is seen as necessary in order to discourage deliberate and flagrant breaches of this Part.
71 Extension of time for compliance with notice
(1) A person who has been given a notice under section 70 may, within 3 months before the end of the period specified in the notice, apply in writing to the ACMA for an extension of that period.
(2) An application for an extension cannot be made if the period specified in the notice was one month.
(3) The ACMA is not required to grant an extension, but may do so if, in its opinion, an extension is appropriate in all the circumstances.
(4) If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(5) The ACMA must not grant more than one extension, and the period of any extension must not exceed:
(a) the period originally specified in the notice; or (b) one year;
whichever is the lesser.
(6) In deciding whether to grant an extension to a person, the ACMA is to have regard to:
(a) the endeavours that the applicant made in attempting to comply with the notice; and
(b) the difficulties experienced by the applicant in attempting to comply with the notice; and
(c) the seriousness of the breach that led to the giving of the notice;
but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.
(7) If the ACMA does not, within 45 days after:
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 8 Action by the ACMA
Section 72
204 Broadcasting Services Act 1992
(a) receiving the application; or (b) if the ACMA has requested further information—receiving
that further information; extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:
(c) the period originally specified in the notice; or (d) one year;
whichever is the lesser.
72 Breach of notice under section 70 to constitute an offence
A person who fails to comply with a notice under section 70 is guilty of an offence.
Penalty: (a) if the breach relates to a commercial television broadcasting
licence or datacasting transmitter licence—20,000 penalty units; or
(b) if the breach relates to a commercial radio broadcasting licence—2,000 penalty units.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Special provision for small markets Division 9
Section 73
Broadcasting Services Act 1992 205
Division 9—Special provision for small markets
73 Additional licence under section 38A not to result in breach of ownership limits
(1) If an additional licence has been allocated under section 38A to the holder of an existing licence, the existing licence and additional licence are to be treated, for the purposes of this Part, as being only one licence.
(2) This section does not apply to the licences at any time after either of the licences is first held by a different person (whether or not it continues to be held by a different person).
73A Additional licence allocated under section 38B not to result in breach of control rules
(1) If an additional licence is allocated under section 38B, then for the purposes of Divisions 2 and 3 of this Part:
(a) the licence is to be disregarded in relation to a person who is in a position to exercise control of that licence at the time it is allocated; and
(b) the licence is to be so disregarded until that person first ceases to be in a position to exercise control of that licence.
(2) If, during the time a licence is disregarded in relation to a person under subsection (1), that person is in a position to exercise control of another person who is in a position to exercise control of the licence, then, for the purposes of Divisions 2 and 3 of this Part, the licence is also to be disregarded during that time in relation to that other person.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 10 Prior opinions by the ACMA
Section 74
206 Broadcasting Services Act 1992
Division 10—Prior opinions by the ACMA
74 Requests to ACMA to give an opinion on whether a person is in a position to control a licence, a newspaper or a company
(1) A person may apply to the ACMA for an opinion as to whether: (a) the person is in a position to exercise control of a commercial
television broadcasting licence, a commercial radio broadcasting licence, a satellite subscription television broadcasting licence, a datacasting transmitter licence, a newspaper or a company; or
(b) the person would, if a transaction took place or a contract, agreement or arrangement were entered into, being one details of which are given in the application, be in a position to exercise control of a commercial television broadcasting licence, a commercial radio broadcasting licence, a satellite subscription television broadcasting licence, a datacasting transmitter licence, a newspaper or a company.
(2) An application must be in accordance with a form approved in writing by the ACMA, and must state the applicant’s opinion as to whether the applicant is, or would be, in a position to exercise control of the commercial television broadcasting licence, the commercial radio broadcasting licence, the satellite subscription television broadcasting licence, the datacasting transmitter licence, the newspaper or the company.
(3) If the ACMA considers that additional information is required before an opinion can be given, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.
(4) The ACMA must, as soon as practicable after: (a) receiving the application; or (b) if the ACMA has requested further information—receiving
that further information; give the applicant, in writing, its opinion as to whether the applicant is in a position to exercise control of the relevant licence, newspaper or company.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Prior opinions by the ACMA Division 10
Section 74
Broadcasting Services Act 1992 207
(5) If the ACMA has given an opinion under this section to a person that the person is not in a position to exercise control of a licence or newspaper, neither the ACMA nor any other Government agency may, while the circumstances relating to the applicant and the licence, a newspaper or a company remain substantially the same as those advised to the ACMA in relation to the application for the opinion, take any action against the person under this Act on the basis that the person is in a position to exercise control of the licence, newspaper or company.
(6) If the ACMA does not, within 45 days after: (a) receiving the application; or (b) if the ACMA has requested further information—receiving
that further information; give the applicant, in writing, its opinion as to whether the applicant is in a position to exercise control of the relevant licence, newspaper or company, the ACMA is to be taken to have given an opinion at the end of that period that accords with the applicant’s opinion.
(7) The ACMA may charge a fee for providing an opinion under this section.
Part 5 Control of commercial broadcasting licences and datacasting transmitter licences Division 11 Miscellaneous
Section 75
208 Broadcasting Services Act 1992
Division 11—Miscellaneous
75 Register of matters under this Part
(1) The ACMA is to maintain a Register of: (aa) licences granted under section 38A or 38B; and (a) notifications under Division 6; and (b) approvals given by the ACMA under section 67; and (c) extensions granted by the ACMA under section 68; and (d) notices given by the ACMA under section 70; and (e) extensions granted by the ACMA under section 71.
(2) The ACMA is not to include in the Register an approval under section 67 until the relevant transaction or agreement has taken place or been entered into.
(3) The Register is to be open for public inspection, and a person is entitled to be given a copy of, or an extract from, any entry in the Register.
(4) The ACMA may charge fees for inspections of the Register or for the provision of copies of or extracts from the Register.
(5) The ACMA may supply copies of or extracts from the Register certified by a member, and a copy or extract so certified is admissible in evidence in all courts and proceedings without further proof or production of the original.
76 Continuing offences
In order to avoid any doubt, it is declared that section 4K of the Crimes Act 1914 applies to obligations under this Part to comply with a notice and other obligations under this Part to do things within a particular period.
77 Part has effect notwithstanding Competition and Consumer Act
The provisions of this Part have effect notwithstanding the Competition and Consumer Act 2010.
Control of commercial broadcasting licences and datacasting transmitter licences Part 5
Miscellaneous Division 11
Section 78
Broadcasting Services Act 1992 209
78 Part not to invalidate appointments
Nothing in this Part invalidates an appointment of a person as a director of a company.
Part 6 Community broadcasting licences
Section 79
210 Broadcasting Services Act 1992
Part 6—Community broadcasting licences
79 Interpretation
In this Part, company includes an incorporated association.
79A Application
This Part does not apply in relation to community broadcasting licences that are temporary community broadcasting licences. Note: Part 6A deals with temporary community broadcasting licences.
80 ACMA to advertise for applications for BSB community broadcasting licences
(1) Where the ACMA is going to allocate one or more community broadcasting licences that are broadcasting services bands licences, the ACMA is to advertise, in a manner determined by the ACMA, for applications from companies that:
(a) are formed in Australia or in an external Territory; and (b) represent a community interest.
(2) The advertisements are to include: (a) the date before which applications must be received by the
ACMA; and (b) a statement specifying how details of:
(i) the conditions that are to apply to the licence; and (ii) the licence area of the licence; and
(iii) any priorities that the Minister has, under subsection 84(1), directed the ACMA to observe in the allocation of that licence or those licences;
can be obtained.
(3) Applications must be in accordance with a form approved in writing by the ACMA.
Community broadcasting licences Part 6
Section 81
Broadcasting Services Act 1992 211
81 When licences must not be allocated
(1) A licence is not to be allocated to an applicant if: (a) in the case of an applicant for a CTV licence—the applicant
is not a company limited by guarantee within the meaning of the Corporations Act 2001; or
(b) the ACMA decides that subsection 83(2) applies to the applicant.
(2) Paragraph (1)(b) does not require the ACMA to consider the application of subsection 83(2) in relation to an applicant before allocating a licence to the applicant.
82 Other community broadcasting licences
(1) The ACMA may allocate to a person, on application in writing by the person, a community broadcasting licence that is not a broadcasting services bands licence.
(1A) Licences under subsection (1) are to be allocated on the basis of one licence per service.
(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.
83 When persons are regarded as suitable
(1) For the purposes of this Part, a company is a suitable community broadcasting licensee or a suitable applicant for a community broadcasting licence if the ACMA has not decided that subsection (2) applies to the company.
(2) The ACMA may, if it is satisfied that allowing a particular company to provide or continue to provide broadcasting services under a community broadcasting licence would lead to a significant risk of:
(a) an offence against this Act or the regulations being committed; or
Part 6 Community broadcasting licences
Section 84
212 Broadcasting Services Act 1992
(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 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 broadcasting licences Part 6
Section 84A
Broadcasting Services Act 1992 213
community within the licence area of the proposed licence; and
(b) the nature and diversity of the interests of that community; 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.
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.
Part 6 Community broadcasting licences
Section 85
214 Broadcasting Services Act 1992
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.
Community broadcasting licences Part 6
Section 85A
Broadcasting Services Act 1992 215
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.
Part 6 Community broadcasting licences
Section 86
216 Broadcasting Services Act 1992
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:
Community broadcasting licences Part 6
Section 87
Broadcasting Services Act 1992 217
(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
Part 6 Community broadcasting licences
Section 87A
218 Broadcasting Services Act 1992
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 written determination, 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 written determination, impose other conditions on all CTV licences, including, but not limited to, conditions relating to:
(a) community access to air-time; or
Community broadcasting licences Part 6
Section 87A
Broadcasting Services Act 1992 219
(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 written determination, 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.
Determinations are disallowable instruments
(11) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
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.
Part 6 Community broadcasting licences
Section 87B
220 Broadcasting Services Act 1992
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
Subject to subsection 90(1E) and Part 10, community broadcasting licences remain in force for 5 years.
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.
Community broadcasting licences Part 6
Section 90
Broadcasting Services Act 1992 221
(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 time when the licence is due to expire; 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.
(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;
Part 6 Community broadcasting licences
Section 91
222 Broadcasting Services Act 1992
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.
Community broadcasting licences Part 6
Section 91A
Broadcasting Services Act 1992 223
(2A) The ACMA may refuse to renew a community broadcasting licence that is a broadcasting services bands licence if, having regard to the matters in paragraphs 84(2)(a) to (f), it considers that it would not allocate such a licence if it were deciding whether to allocate the licence to the licensee.
(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
Part 6 Community broadcasting licences
Section 92
224 Broadcasting Services Act 1992
(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.
Temporary community broadcasting licences Part 6A
Section 92A
Broadcasting Services Act 1992 225
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.
(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
Part 6A Temporary community broadcasting licences
Section 92D
226 Broadcasting Services Act 1992
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
Temporary community broadcasting licences Part 6A
Section 92E
Broadcasting Services Act 1992 227
(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 is not to 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
(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.
Part 6A Temporary community broadcasting licences
Section 92F
228 Broadcasting Services Act 1992
92F Licences to accord with alternative planning procedures
The ACMA is not to allocate a temporary community broadcasting licence except in accordance with a determination of the ACMA under section 34.
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 of up to 12 months 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
Temporary community broadcasting licences Part 6A
Section 92J
Broadcasting Services Act 1992 229
(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.
Part 6A Temporary community broadcasting licences
Section 92K
230 Broadcasting Services Act 1992
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.
Subscription television broadcasting services Part 7 Allocation of subscription television broadcasting licences Division 1
Section 95
Broadcasting Services Act 1992 231
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
Part 7 Subscription television broadcasting services Division 1 Allocation of subscription television broadcasting licences
Section 97
232 Broadcasting Services Act 1992
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.
Subscription television broadcasting services Part 7 Allocation of subscription television broadcasting licences Division 1
Section 98
Broadcasting Services Act 1992 233
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
Part 7 Subscription television broadcasting services Division 1 Allocation of subscription television broadcasting licences
Section 98D
234 Broadcasting Services Act 1992
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.
(2) If the operation of this Act (other than section 43AA, section 43AB or section 43AC) would result in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.
(3) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.
Subscription television broadcasting services Part 7 Conditions of subscription television broadcasting licence Division 2
Section 99
Broadcasting Services Act 1992 235
Division 2—Conditions of subscription television broadcasting licence
99 Conditions applicable to subscription television broadcasting licence
(1) The conditions set out in Part 6 of Schedule 2 apply to the provision by a subscription television broadcasting licensee of a subscription television broadcasting service.
(2) The ACMA may, by notice in writing given to a subscription television broadcasting licensee, specify additional conditions to which the licence is subject or vary or revoke a condition imposed under this subsection.
(4) If the ACMA proposes to impose a new condition or to vary or revoke a condition, the ACMA must:
(a) give to the licensee written notice of its intention; and (b) give to the licensee a reasonable opportunity to make
representations to the ACMA in relation to the proposed action; and
(c) publish the proposed changes in the Gazette.
(5) This section does not allow the ACMA to vary or revoke a condition set out in Part 6 of Schedule 2.
(6) 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.
(7) Action taken under this section must not be inconsistent with: (a) determinations and clarifications under section 19; or (b) conditions set out in Part 6 of Schedule 2.
100 Matters to which conditions may relate
(1) Conditions of a subscription television broadcasting licence must be relevant to subscription television broadcasting services.
Part 7 Subscription television broadcasting services Division 2 Conditions of subscription television broadcasting licence
Section 100
236 Broadcasting Services Act 1992
(2) Without limiting the range of conditions that may be imposed, the ACMA may impose a condition:
(a) requiring a 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 a subscription television broadcasting licensee does not recur; or
(c) designed to ensure compliance with the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995.
(3) The ACMA must impose conditions on satellite subscription television broadcasting licences:
(a) designed to ensure that the domestic reception equipment used by each satellite subscription television broadcasting licensee is accessible by other satellite broadcasting services; and
(b) designed to ensure that each satellite subscription television broadcasting licensee that has a subscriber management system provides access to that system to other satellite subscription television broadcasting licensees at a fair price.
(4) The Minister may direct the ACMA to impose a condition under this section designed to ensure that subscription television broadcasting licensees adequately involve Australian industry in the provision of services under those licences.
(4A) Conditions under subsection (4) may be different for different classes of licensees.
(5) The ACMA must impose a condition on all subscription television broadcasting licences requiring each licensee to make available, as an option, domestic reception equipment on a rental basis.
(6) The ACMA must impose a condition on all non-satellite subscription television broadcasting licences requiring that, if a licensee rents domestic reception equipment to a consumer, the rental agreement must allow the consumer to terminate the agreement on giving one month’s written notice to the licensee.
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103A
Broadcasting Services Act 1992 237
Division 2A—Eligible drama expenditure
Subdivision A—Introduction
103A Simplified outline
The following is a simplified outline of this Division:
• This Division requires subscription television broadcasting licensees to ensure the maintenance of minimum levels of expenditure on new eligible drama programs.
• An eligible drama program is a drama program that is an Australian program, an Australian/New Zealand program, a New Zealand program or an Australian official co-production.
• If a licensee provides a subscription TV drama service, expenditure on new eligible drama programs for each financial year must be at least 10% of total program expenditure.
• If a channel provider supplies a channel that is televised on a subscription TV drama service, the 10% expenditure requirement is calculated by reference to the expenditure incurred by the channel provider.
• If a channel provider supplies a channel that is televised on a subscription TV drama service and the 10% expenditure requirement is not met for a particular financial year, the shortfall will have to be made up in the next financial year.
• If expenditure on new eligible drama programs for a financial year exceeds the 10% expenditure requirement, the excess expenditure may be carried forward to the next financial year.
• Licensees and channel providers are required to lodge annual returns about their program expenditure.
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103B
238 Broadcasting Services Act 1992
103B Definitions
In this Division:
acquiring, in relation to a drama program, includes acquiring rights in relation to the program.
Australian Content Standard means: (a) the Broadcasting Services (Australian Content) Standard
2005 as in force from time to time; or (b) if the standard mentioned in paragraph (a) is not in force, but
there is in force another standard that is a successor (whether immediate or not) to the standard mentioned in paragraph (a)—that other standard as in force from time to time.
carry-forward eligible drama expenditure provision means: (a) subsection 103NA(2); or (b) subsection 103RA(2); or (c) subsection 103TA(2); or (d) subsection 103UA(2); or (e) subsection 103XA(2); or (f) subsection 103ZAA(2).
channel means a continuous stream of programs.
channel provider has the meaning given by section 103C.
compliance certificate means a certificate under section 103ZE.
designated script development expenditure, in relation to a program, means expenditure incurred in developing the screenplay or a script outline for the program, where:
(a) the program is a drama program; and (b) the expenditure is incurred by a person (the first person)
under a contract with another person who is not a director, officer or employee of the first person; and
(c) the writer, or each of the writers, involved in developing the screenplay or script outline is:
(i) a citizen or permanent resident of Australia; or
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103B
Broadcasting Services Act 1992 239
(ii) a citizen or permanent resident of New Zealand; and (d) the producer of the program is:
(i) a citizen or permanent resident of Australia; or (ii) a citizen or permanent resident of New Zealand; and
(e) the expenditure is paid before the commencement of principal photography for the program; and
(f) the expenditure is paid on or after 1 January 2006. For the purposes of paragraph (d), producer has the same meaning as in the Australian Content Standard.
drama program means: (a) a program that has a fully scripted screenplay in which the
dramatic elements of character, theme and plot are introduced and developed to form a narrative structure; or
(b) a program that has: (i) a partially scripted screenplay in which the dramatic
elements of character, theme and plot are introduced and developed to form a narrative structure; and
(ii) actors delivering improvised dialogue that is based on a script outline or outlines developed by a writer or writers; or
(c) a program that has actors delivering improvised dialogue that is based on a script outline or outlines:
(i) developed by a writer or writers; and (ii) in which the dramatic elements of character, theme and
plot are introduced and developed to form a narrative structure;
and includes: (d) a fully scripted sketch comedy program; and (e) an animated drama; and (f) a dramatised documentary;
but does not include: (g) a program that involves the incidental use of actors; or (h) advertising or sponsorship matter (whether or not of a
commercial kind).
eligible drama program means:
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103B
240 Broadcasting Services Act 1992
(a) a drama program that is an Australian program (within the meaning of the Australian Content Standard); or
(b) a drama program that is an Australian/New Zealand program (within the meaning of the Australian Content Standard); or
(c) a drama program that is a New Zealand program (within the meaning of the Australian Content Standard); or
(d) a drama program that is an Australian official co-production (within the meaning of the Australian Content Standard).
expenditure, in relation to a program or program material, means: (a) expenditure incurred in acquiring the program or program
material; or (b) expenditure incurred in producing the program or program
material; or (c) pre-production expenditure incurred in relation to the
program or program material; or (d) expenditure incurred by way of the making of an investment
in the program or program material; and includes nil expenditure. Note: Section 103H sets out a special rule for non-designated pre-production
expenditure.
financial year means: (a) the financial year beginning on 1 July 1999; or (b) a later financial year.
incidental matter means: (a) advertising or sponsorship matter (whether or not of a
commercial kind); or (b) a program promotion; or (c) an announcement; or (d) a hosting; or (e) any other interstitial program.
licensee means a subscription television broadcasting licensee.
new, in relation to an eligible drama program, has the meaning given by section 103K.
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103C
Broadcasting Services Act 1992 241
non-designated pre-production expenditure means pre-production expenditure other than designated script development expenditure.
part-channel provider has the meaning given by section 103D.
part-pass-through provider has the meaning given by section 103F.
pass-through provider has the meaning given by section 103E.
pre-production expenditure, in relation to a program or program material, means:
(a) expenditure incurred in developing the screenplay or a script outline for the program or program material; or
(b) any other expenditure incurred by way of pre-production costs for the program or program material.
program material does not include advertising or sponsorship matter (whether or not of a commercial kind).
registered auditor means a person registered as an auditor, or taken to be registered as an auditor, under Part 9.2 of the Corporations Act 2001.
subscription TV drama service means a subscription television broadcasting service devoted predominantly to drama programs.
103C Channel providers
For the purposes of this Division, a channel provider, in relation to a subscription TV drama service provided by a licensee, is a person who:
(a) packages a channel (which may include programs produced by the person); and
(b) supplies the licensee with the channel; and (c) carries on a business in Australia, by means of a principal
office or of a branch, that involves the supply of the channel; where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is televised by the licensee on the subscription TV drama service.
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103D
242 Broadcasting Services Act 1992
103D Part-channel providers
For the purposes of this Division, a part-channel provider, in relation to a subscription TV drama service provided by a licensee, is a person who:
(a) assembles a package of programs (which may include programs produced by the person); and
(b) supplies the licensee with the package; and (c) carries on a business in Australia, by means of a principal
office or of a branch, that involves the supply of the package; where:
(d) the package consists predominantly of drama programs; and (e) the package constitutes a significant proportion of the
program material that is televised by the licensee on the subscription TV drama service; and
(f) there is neither: (i) a channel provider; nor
(ii) a pass-through provider; in relation to the subscription TV drama service.
103E Pass-through providers
For the purposes of this Division, a pass-through provider, in relation to a subscription TV drama service provided by a licensee, is a person who:
(a) packages a channel (which may include programs produced by the person); and
(b) supplies the licensee with the channel; and (c) does not carry on a business in Australia, by means of a
principal office or of a branch, that involves the supply of the channel;
where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is televised by the licensee on the subscription TV drama service.
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103F
Broadcasting Services Act 1992 243
103F Part-pass-through providers
For the purposes of this Division, a part-pass-through provider, in relation to a subscription TV drama service provided by a licensee, is a person who:
(a) assembles a package of programs (which may include programs produced by the person); and
(b) supplies the licensee with the package; and (c) does not carry on a business in Australia, by means of a
principal office or of a branch, that involves the supply of the package;
where: (d) the package consists predominantly of drama programs; and (e) the package constitutes a significant proportion of the
program material that is televised by the licensee on the subscription TV drama service; and
(f) there is neither: (i) a channel provider; nor
(ii) a pass-through provider; in relation to the subscription TV drama service.
103G Supply of channel or package
For the purposes of this Division, a person is taken to have supplied a channel, or a package of programs, to a licensee if the channel or package, as the case may be, is supplied to the licensee by the person:
(a) directly; or (b) indirectly through one or more interposed persons.
103H Non-designated pre-production expenditure not to be counted unless principal photography has commenced
For the purposes of this Division, non-designated pre-production expenditure is not to be counted unless principal photography has commenced for the program or program material concerned.
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103J
244 Broadcasting Services Act 1992
103J Cash-based accounting—when expenditure is incurred
(1) For the purposes of this Division: (a) if the whole of an item of expenditure (other than
non-designated pre-production expenditure) is paid at a particular time—the expenditure is incurred when the expenditure is paid; and
(b) if different parts of an item of expenditure (other than non-designated pre-production expenditure) are paid at different times—each part is incurred when the part is paid.
(2) For the purposes of this Division: (a) if the whole of an item of non-designated pre-production
expenditure is paid at a particular time—the expenditure is incurred at whichever is the later of the following times:
(i) the time when the expenditure is paid; (ii) the commencement of principal photography for the
program or program material concerned; and (b) if different parts of an item of non-designated pre-production
expenditure are paid at different times—each part is incurred at whichever is the later of the following times:
(i) the time when the part is paid; (ii) the commencement of principal photography for the
program or program material concerned.
103JA When designated script development expenditure is incurred in relation to an eligible drama program etc.
(1) If: (a) during a financial year, a person incurs designated script
development expenditure in relation to a drama program; and (b) principal photography did not commence for the program
before the end of the financial year; this Division has effect, in relation to that expenditure, as if the drama program were an eligible drama program.
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103JA
Broadcasting Services Act 1992 245
Recoupment of expenditure incurred by a person—program is not produced as an eligible drama program
(2) If: (a) during a financial year (the first financial year), a person
incurred designated script development expenditure in relation to a drama program; and
(b) principal photography did not commence for the program before the end of the first financial year; and
(c) principal photography commences for the program during a later financial year; and
(d) when principal photography commences for the program, the drama program is not an eligible drama program; and
(e) the person nominated the whole or a part of the designated script development expenditure for the purposes of the application of a particular provision of this Division in relation to a subscription TV drama service;
then, for the purposes of the application of this Division to the subscription TV drama service, the total expenditure incurred by the person during the later financial year on new eligible drama programs is taken to be reduced (but not below zero) by the amount of the whole or the part, as the case may be, of the expenditure referred to in paragraph (e).
Recoupment of expenditure incurred by a pass-through provider— program is not produced as an eligible drama program
(3) If: (a) during a financial year (the first financial year), a person
incurred designated script development expenditure in relation to a drama program; and
(b) the person is a pass-through provider in relation to a subscription TV drama service because the person supplies a channel; and
(c) principal photography did not commence for the program before the end of the first financial year; and
(d) principal photography commences for the program during a later financial year; and
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103JA
246 Broadcasting Services Act 1992
(e) when principal photography commences for the program, the drama program is not an eligible drama program; and
(f) the licensee who provided the subscription TV drama service nominated the whole or a part of the designated script development expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;
then, for the purposes of the application of this Division to the subscription TV drama service, the total expenditure incurred by the pass-through provider during the later financial year on new eligible drama programs is taken to be reduced (but not below zero) by the amount of the whole or the part, as the case may be, of the expenditure referred to in paragraph (f).
Recoupment of expenditure incurred by a part-pass-through provider—program is not produced as an eligible drama program
(4) If: (a) during a financial year (the first financial year), a person
incurred designated script development expenditure in relation to a drama program; and
(b) the person is a part-pass-through provider in relation to a subscription TV drama service because the person supplies a package of programs; and
(c) principal photography did not commence for the program before the end of the first financial year; and
(d) principal photography commences for the program during a later financial year; and
(e) when principal photography commences for the program, the drama program is not an eligible drama program; and
(f) the licensee who provided the subscription TV drama service nominated the whole or a part of the designated script development expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;
then, for the purposes of the application of this Division to the subscription TV drama service, the total expenditure incurred by the part-pass-through provider during the later financial year on new eligible drama programs is taken to be reduced (but not below
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103K
Broadcasting Services Act 1992 247
zero) by the amount of the whole or the part, as the case may be, of the expenditure referred to in paragraph (f).
103K When expenditure incurred on a new eligible drama program
(1) For the purposes of this Division, if a person incurs expenditure on an eligible drama program, the eligible drama program is new if, and only if, the whole or a substantial part of the program has not been televised in Australia or New Zealand on a broadcasting service at any time before the expenditure is incurred.
(2) For the purposes of subsection (1), it is to be assumed that the definition of broadcasting service in subsection 6(1) extended to matters and things in New Zealand.
103L ACMA may make determinations about what constitutes program expenditure
Program material
(1) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be expenditure incurred on program material (other than eligible drama programs).
(2) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be expenditure incurred on program material (other than eligible drama programs).
Eligible drama programs
(3) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be expenditure incurred on an eligible drama program.
(4) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be expenditure incurred on an eligible drama program.
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103M
248 Broadcasting Services Act 1992
Designated script development expenditure
(4A) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be designated script development expenditure.
(4B) The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be designated script development expenditure.
Determination has effect
(5) A determination under this section has effect accordingly.
Determination to be of a legislative character
(6) A determination under this section is to be an instrument of a legislative character.
Legislative instrument
(7) A determination under this section is a legislative instrument for the purpose of the Legislative Instruments Act 2003. Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
103M Expenditure to be nominated only once in meeting licence conditions
Channel provider and part-channel provider
(1) If: (a) either:
(i) a person is a channel provider in relation to a subscription TV drama service provided by a licensee because the person supplies a channel; or
(ii) a person is a part-channel provider in relation to a subscription TV drama service provided by a licensee because the person supplies a package of programs; and
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103M
Broadcasting Services Act 1992 249
(b) the person nominates the whole or a part of particular expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;
the whole or part, as the case may be, of the expenditure must not be nominated by the person for the purposes of:
(c) the application of any other provision of this Division (other than a carry-forward eligible drama expenditure provision) in relation to that service; or
(d) the application of any provision of this Division in relation to another subscription TV drama service provided by the licensee; or
(e) the application of any provision of this Division in relation to another subscription TV drama service provided by another licensee.
(2) However, the rule in paragraph (1)(e): (a) does not apply in relation to a person who is a channel
provider if: (i) the person supplies the same or a substantially similar
channel to the other licensee; and (ii) apart from any breaks for the purposes of the
transmission of incidental matter, the same or a substantially similar channel supplied by the person is televised by the other licensee on the other subscription TV drama service; and
(b) does not apply in relation to a person who is a part-channel provider if:
(i) the person supplies the same or a substantially similar package of programs to the other licensee; and
(ii) apart from any breaks for the purposes of the transmission of incidental matter, the same or a substantially similar package of programs supplied by the person is televised by the other licensee on the other subscription TV drama service.
Licensee
(3) If:
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103N
250 Broadcasting Services Act 1992
(a) a licensee provides a subscription TV drama service; and (b) the licensee nominates the whole or a part of particular
expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;
the whole or part, as the case may be, of the expenditure must not be nominated by the licensee for the purposes of:
(c) the application of any other provision of this Division (other than a carry-forward eligible drama expenditure provision) in relation to that service; or
(d) the application of any provision of this Division in relation to another subscription TV drama service provided by the licensee.
Subdivision B—Channel provider supplies channel
103N 10% minimum eligible drama expenditure—channel provider supplies channel
(1) If: (a) a licensee provides a subscription TV drama service; and (b) a person is a channel provider in relation to the subscription
TV drama service because the person supplies a channel; it is a condition of the licence that, for each financial year of operation, the sum of:
(c) the channel provider’s new eligible drama expenditure in relation to the subscription TV drama service; and
(d) the channel provider’s carry-forward eligible drama expenditure in relation to the subscription TV drama service;
equals or exceeds 10% of the channel provider’s total program expenditure in relation to the channel.
(2) In this section:
channel provider’s carry-forward eligible drama expenditure, in relation to the subscription TV drama service, means the channel provider’s carry-forward eligible drama expenditure (within the meaning of subsection 103NA(2)) for the financial year.
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103NA
Broadcasting Services Act 1992 251
channel provider’s new eligible drama expenditure, in relation to the subscription TV drama service, means so much of the total expenditure incurred by the channel provider during the financial year on new eligible drama programs as the channel provider nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.
channel provider’s total program expenditure, in relation to the channel, means the total expenditure incurred by the channel provider during the financial year on the program material that is included, or available to be included, in the channel.
(2A) The channel provider is not entitled to nominate, under the definition of channel provider’s new eligible drama expenditure in subsection (2), so much of the designated script development expenditure incurred by the channel provider during the financial year as exceeds 10% of the channel provider’s new eligible drama expenditure in relation to the subscription TV drama service.
(3) Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1). Note: If the sum of the channel provider’s new eligible drama expenditure
and the channel provider’s carry-forward eligible drama expenditure is less than 10% of the channel provider’s total program expenditure, the shortfall will have to be made up in the next financial year—see sections 103P and 103Q.
103NA Carry-forward eligible drama expenditure
(1) This section applies if: (a) a licensee provides a subscription TV drama service; and (b) a person is a channel provider in relation to the subscription
TV drama service because the person supplies a channel; and (c) the channel provider’s new eligible drama expenditure
(within the meaning of section 103N) in relation to the subscription TV drama service for a financial year exceeds 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the channel for the financial year.
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103P
252 Broadcasting Services Act 1992
(2) For the purposes of section 103N, the channel provider’s carry-forward eligible drama expenditure in relation to the subscription TV drama service for the next following financial year is so much of the excess expenditure as the channel provider nominates for the purposes of the application of this subsection in relation to the subscription TV drama service.
(3) Paragraph (1)(c) does not apply to so much of the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the subscription TV drama service as was incurred before 1 January 2006.
103P Shortfall of eligible drama expenditure—channel provider supplies channel exclusively to licensee
(1) This section applies if: (a) a licensee (the first licensee) provides a subscription TV
drama service (the first subscription TV drama service); and (b) a person is a channel provider in relation to the subscription
TV drama service because the person supplies a channel (the first channel); and
(c) it is not the case that the channel provider supplies the same or a substantially similar channel to another licensee in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar channel supplied by the channel provider is televised by the other licensee on another subscription TV drama service; and
(d) the sum of: (i) the channel provider’s new eligible drama expenditure
(within the meaning of section 103N) in relation to the first subscription TV drama service for a particular financial year (the shortfall year); and
(ii) the channel provider’s carry-forward eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year;
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103P
Broadcasting Services Act 1992 253
is less than 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the first licensee’s licence that, for the next financial year (the make-up year):
(a) the channel provider’s make-up expenditure is equal to the shortfall amount; or
(b) the first licensee’s make-up expenditure is equal to the shortfall amount; or
(c) the sum of: (i) the channel provider’s make-up expenditure; and
(ii) the first licensee’s make-up expenditure; is equal to the shortfall amount.
Definitions
(3) In this section:
channel provider’s make-up expenditure means so much of the total expenditure incurred by the channel provider during the make-up year on new eligible drama programs as the channel provider nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.
first licensee’s make-up expenditure means so much of the total expenditure incurred by the first licensee during the make-up year on new eligible drama programs not included, or available to be included, in the first channel as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.
shortfall amount means the amount by which the sum of: (a) the channel provider’s new eligible drama expenditure
(within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year; and
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103Q
254 Broadcasting Services Act 1992
(b) the channel provider’s carry-forward eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year;
fell short of 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.
103Q Shortfall of eligible drama expenditure—channel provider supplies channel to multiple licensees
(1) This section applies if: (a) a licensee (the first licensee) provides a subscription TV
drama service (the first subscription TV drama service); and (b) a person is a channel provider in relation to the first
subscription TV drama service because the person supplies a channel (the first channel); and
(c) the channel provider supplies the same or a substantially similar channel to one or more other licensees (the additional licensees) in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar channel supplied by the channel provider is televised by the additional licensees on subscription TV drama services (the additional subscription TV drama services); and
(d) the sum of: (i) the channel provider’s new eligible drama expenditure
(within the meaning of section 103N) in relation to the first subscription TV drama service for a particular financial year (the shortfall year); and
(ii) the channel provider’s carry-forward eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year;
is less than 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103Q
Broadcasting Services Act 1992 255
Shortfall amount to be made up next financial year
(2) It is a condition of the first licensee’s licence that, for the next financial year (the make-up year):
(a) the channel provider’s make-up expenditure is equal to the shortfall amount; or
(b) the first licensee’s make-up expenditure is equal to the first licensee’s subscriber percentage of the shortfall amount; or
(c) if the channel provider’s make-up expenditure is less than the shortfall amount—the first licensee’s make-up expenditure is equal to the first licensee’s subscriber percentage of the difference between the shortfall amount and the channel provider’s make-up expenditure.
Definitions
(3) In this section:
channel provider’s make-up expenditure means so much of the total expenditure incurred by the channel provider during the make-up year on new eligible drama programs as the channel provider nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.
first licensee’s make-up expenditure means so much of the total expenditure incurred by the first licensee during the make-up year on new eligible drama programs not included, or available to be included, in the first channel as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.
first licensee’s subscriber percentage means the percentage worked out using the following formula:
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103R
256 Broadcasting Services Act 1992
monthly subscriber number, for a subscription TV drama service for a particular month, means the number worked out using the following formula:
shortfall amount means the amount by which the sum of: (a) the channel provider’s new eligible drama expenditure
(within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year; and
(b) the channel provider’s carry-forward eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year;
fell short of 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.
subscribers of additional licensees means the sum of the monthly subscriber numbers for the additional subscription TV drama services for each month of operation during the shortfall year.
subscribers of first licensee means the sum of the monthly subscriber numbers for the first subscription TV drama service for each month of operation during the shortfall year.
Subdivision C—Pass-through provider supplies channel
103R 10% minimum eligible drama expenditure—pass-through provider supplies channel
(1) If: (a) a licensee provides a subscription TV drama service; and (b) a person is a pass-through provider in relation to the
subscription TV drama service because the person supplies a channel;
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103R
Broadcasting Services Act 1992 257
it is a condition of the licence that, for each financial year of operation, the sum of:
(c) the licensee’s new eligible drama expenditure in relation to the subscription TV drama service; and
(d) the licensee’s carry-forward eligible drama expenditure in relation to the subscription TV drama service;
equals or exceeds 10% of the licensee’s total program expenditure in relation to the channel.
(2) In this section:
licensee’s carry-forward eligible drama expenditure, in relation to the subscription TV drama service, means the licensee’s carry-forward eligible drama expenditure (within the meaning of subsection 103RA(2)) for the financial year.
licensee’s new eligible drama expenditure, in relation to the subscription TV drama service, means the sum of:
(a) so much of the total expenditure incurred by the licensee during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service; and
(b) so much of the total expenditure incurred by the pass-through provider during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.
licensee’s total program expenditure, in relation to the channel, means the total expenditure incurred by the licensee during the financial year in respect of the supply by the pass-through provider of the channel.
(2A) The licensee is not entitled to nominate, under the definition of licensee’s new eligible drama expenditure in subsection (2), so much of the designated script development expenditure incurred by the licensee and/or the pass-through provider during the financial year as exceeds 10% of the licensee’s new eligible drama expenditure in relation to the subscription TV drama service.
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103RA
258 Broadcasting Services Act 1992
(3) If: (a) the licensee nominates the whole or a part of particular
expenditure under paragraph (a) of the definition of licensee’s new eligible drama expenditure in subsection (2); and
(b) the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the pass-through provider;
that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.
(4) Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1). Note: If the sum of the licensee’s new eligible drama expenditure and the
licensee’s carry-forward eligible drama expenditure is less than 10% of the licensee’s total program expenditure, the shortfall will have to be made up in the next financial year—see section 103S.
103RA Carry-forward eligible drama expenditure
(1) This section applies if: (a) a licensee provides a subscription TV drama service; and (b) a person is a pass-through provider in relation to the
subscription TV drama service because the person supplies a channel; and
(c) the licensee’s new eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service for a financial year exceeds 10% of the licensee’s total program expenditure (within the meaning of section 103R) in relation to the channel for the financial year.
(2) For the purposes of section 103R, the licensee’s carry-forward eligible drama expenditure in relation to the subscription TV drama service for the next following financial year is so much of the excess expenditure as the licensee nominates for the purposes of the application of this subsection in relation to the subscription TV drama service.
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103S
Broadcasting Services Act 1992 259
(3) Paragraph (1)(c) does not apply to so much of the licensee’s new eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service as was incurred before 1 January 2006.
103S Shortfall of eligible drama expenditure—pass-through provider supplies channel
(1) This section applies if: (a) a licensee provides a subscription TV drama service; and (b) a person is a pass-through provider in relation to the
subscription TV drama service because the person supplies a channel; and
(c) the sum of: (i) the licensee’s new eligible drama expenditure (within
the meaning of section 103R) in relation to the subscription TV drama service for a particular financial year (the shortfall year); and
(ii) the licensee’s carry-forward eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service for the shortfall year;
is less than 10% of the licensee’s total program expenditure (within the meaning of section 103R) in relation to the channel for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the licensee’s licence that, for the next financial year (the make-up year), the licensee’s make-up expenditure is equal to the shortfall amount.
Definitions
(3) In this section:
licensee’s make-up expenditure, in relation to the subscription TV drama service, means the sum of:
(a) so much of the total expenditure incurred by the licensee during the make-up year on new eligible drama programs as the licensee nominates for the purposes of the application of
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103T
260 Broadcasting Services Act 1992
subsection (2) in relation to the subscription TV drama service; and
(b) so much of the total expenditure incurred by the pass-through provider during the make-up year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service.
shortfall amount means the amount by which the sum of: (a) the licensee’s new eligible drama expenditure (within the
meaning of section 103R) in relation to the subscription TV drama service for the shortfall year; and
(b) the licensee’s carry-forward eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service for the shortfall year;
fell short of 10% of the licensee’s total program expenditure (within the meaning of section 103R) in relation to the channel for the shortfall year.
Double counting
(4) If: (a) the licensee nominates the whole or a part of particular
expenditure under paragraph (a) of the definition of licensee’s make-up expenditure in subsection (3); and
(b) the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the pass-through provider;
that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.
Subdivision D—Licensee supplies all program material
103T 10% minimum eligible drama expenditure—licensee supplies all program material
(1) If: (a) a licensee provides a subscription TV drama service; and
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103T
Broadcasting Services Act 1992 261
(b) there is none of the following: (i) a channel provider;
(ii) a pass-through provider; (iii) a part-channel provider; (iv) a part-pass-through provider; in relation to the subscription TV drama service;
it is a condition of the licence that, for each financial year of operation, the sum of:
(c) the licensee’s new eligible drama expenditure in relation to the subscription TV drama service; and
(d) the licensee’s carry-forward eligible drama expenditure in relation to the subscription TV drama service;
equals or exceeds 10% of the licensee’s total program expenditure in relation to the subscription TV drama service.
(2) In this section:
licensee’s carry-forward eligible drama expenditure, in relation to the subscription TV drama service, means the licensee’s carry-forward eligible drama expenditure (within the meaning of subsection 103TA(2)) for the financial year.
licensee’s new eligible drama expenditure, in relation to the subscription TV drama service, means so much of the total expenditure incurred by the licensee during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.
licensee’s total program expenditure, in relation to the subscription TV drama service, means the total expenditure incurred by the licensee during the financial year on program material that is for televising, or available for televising, by the licensee on the subscription TV drama service.
(3) The licensee is not entitled to nominate, under the definition of licensee’s new eligible drama expenditure in subsection (2), so much of the designated script development expenditure incurred by the licensee during the financial year as exceeds 10% of the
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103TA
262 Broadcasting Services Act 1992
licensee’s new eligible drama expenditure in relation to the subscription TV drama service.
103TA Carry-forward eligible drama expenditure
(1) This section applies if: (a) a licensee provides a subscription TV drama service; and (b) there is none of the following:
(i) a channel provider; (ii) a pass-through provider;
(iii) a part-channel provider; (iv) a part-pass-through provider; in relation to the subscription TV drama service; and
(c) the licensee’s new eligible drama expenditure (within the meaning of section 103T) in relation to the subscription TV drama service for a financial year exceeds 10% of the licensee’s total program expenditure (within the meaning of section 103T) in relation to the subscription TV drama service for the financial year.
(2) For the purposes of section 103T, the licensee’s carry-forward eligible drama expenditure in relation to the subscription TV drama service for the next following financial year is so much of the excess expenditure as the licensee nominates for the purposes of the application of this subsection in relation to the subscription TV drama service.
(3) Paragraph (1)(c) does not apply to so much of the licensee’s new eligible drama expenditure (within the meaning of section 103T) in relation to the subscription TV drama service as was incurred before 1 January 2006.
Subdivision E—Part-channel provider supplies package of programs
103U 10% minimum eligible drama expenditure—part-channel provider supplies package of programs
(1) If:
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103U
Broadcasting Services Act 1992 263
(a) a licensee provides a subscription TV drama service; and (b) a person is a part-channel provider in relation to the
subscription TV drama service because the person supplies a package of programs;
it is a condition of the licence that, for each financial year of operation, the sum of:
(c) the part-channel provider’s new eligible drama expenditure in relation to the subscription TV drama service; and
(d) the part-channel provider’s carry-forward eligible drama expenditure in relation to the subscription TV drama service;
equals or exceeds 10% of the part-channel provider’s total program expenditure in relation to the package of programs.
(2) In this section:
part-channel provider’s carry-forward eligible drama expenditure, in relation to the subscription TV drama service, means the part-channel provider’s carry-forward eligible drama expenditure (within the meaning of subsection 103UA(2)) for the financial year.
part-channel provider’s new eligible drama expenditure, in relation to the subscription TV drama service, means so much of the total expenditure incurred by the part-channel provider during the financial year on new eligible drama programs as the part-channel provider nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.
part-channel provider’s total program expenditure, in relation to the package of programs, means the total expenditure incurred by the part-channel provider during the financial year on the program material that is included, or available to be included, in the package of programs.
(2A) The part-channel provider is not entitled to nominate, under the definition of part-channel provider’s new eligible drama expenditure in subsection (2), so much of the designated script development expenditure incurred by the part-channel provider during the financial year as exceeds 10% of the part-channel
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103UA
264 Broadcasting Services Act 1992
provider’s new eligible drama expenditure in relation to the subscription TV drama service.
(3) Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1). Note: If the sum of the part-channel provider’s new eligible drama
expenditure and the part-channel provider’s carry-forward eligible drama expenditure is less than 10% of the part-channel provider’s total program expenditure, the shortfall will have to be made up in the next financial year—see sections 103V and 103W.
103UA Carry-forward eligible drama expenditure
(1) This section applies if: (a) a licensee provides a subscription TV drama service; and (b) a person is a part-channel provider in relation to the
subscription TV drama service because the person supplies a package of programs; and
(c) the part-channel provider’s new eligible drama expenditure (within the meaning of section 103U) in relation to the subscription TV drama service for a financial year exceeds 10% of the part-channel provider’s total program expenditure (within the meaning of section 103U) in relation to the package of programs for the financial year.
(2) For the purposes of section 103U, the part-channel provider’s carry-forward eligible drama expenditure in relation to the subscription TV drama service for the next following financial year is so much of the excess expenditure as the part-channel provider nominates for the purposes of the application of this subsection in relation to the subscription TV drama service.
(3) Paragraph (1)(c) does not apply to so much of the part-channel provider’s new eligible drama expenditure (within the meaning of section 103U) in relation to the subscription TV drama service as was incurred before 1 January 2006.
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103V
Broadcasting Services Act 1992 265
103V Shortfall of eligible drama expenditure—part-channel provider supplies a package of programs exclusively to licensee
(1) This section applies if: (a) a licensee (the first licensee) provides a subscription TV
drama service (the first subscription TV drama service); and (b) a person is a part-channel provider in relation to the
subscription TV drama service because the person supplies a package of programs (the first package of programs); and
(c) it is not the case that the part-channel provider supplies the same or a substantially similar package of programs to another licensee in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar package of programs supplied by the part-channel provider is televised by the other licensee on another subscription TV drama service; and
(d) the sum of: (i) the part-channel provider’s new eligible drama
expenditure (within the meaning of section 103U) in relation to the first subscription TV drama service for a particular financial year (the shortfall year); and
(ii) the part-channel provider’s carry-forward eligible drama expenditure (within the meaning of section 103U) in relation to the first subscription TV drama service for the shortfall year;
is less than 10% of the part-channel provider’s total program expenditure (within the meaning of section 103U) in relation to the first package of programs for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the first licensee’s licence that, for the next financial year (the make-up year):
(a) the part-channel provider’s make-up expenditure is equal to the shortfall amount; or
(b) the first licensee’s make-up expenditure is equal to the shortfall amount; or
(c) the sum of:
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103W
266 Broadcasting Services Act 1992
(i) the part-channel provider’s make-up expenditure; and (ii) the first licensee’s make-up expenditure;
is equal to the shortfall amount.
Definitions
(3) In this section:
first licensee’s make-up expenditure means so much of the total expenditure incurred by the first licensee during the make-up year on new eligible drama programs not included, or available to be included, in the first package of programs as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.
part-channel provider’s make-up expenditure means so much of the total expenditure incurred by the part-channel provider during the make-up year on new eligible drama programs as the part-channel provider nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.
shortfall amount means the amount by which the sum of: (a) the part-channel provider’s new eligible drama expenditure
(within the meaning of section 103U) in relation to the first subscription TV drama service for the shortfall year; and
(b) the part-channel provider’s carry-forward eligible drama expenditure (within the meaning of section 103U) in relation to the first TV drama service for the shortfall year;
fell short of 10% of the part-channel provider’s total program expenditure (within the meaning of section 103U) in relation to the first package of programs for the shortfall year.
103W Shortfall of eligible drama expenditure—part-channel provider supplies a package of programs to multiple licensees
(1) This section applies if: (a) a licensee (the first licensee) provides a subscription TV
drama service (the first subscription TV drama service); and
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103W
Broadcasting Services Act 1992 267
(b) a person is a part-channel provider in relation to the first subscription TV drama service because the person supplies a package of programs (the first package of programs); and
(c) the part-channel provider supplies the same or a substantially similar package of programs to one or more other licensees (the additional licensees) in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar package of programs supplied by the part-channel provider is televised by the additional licensees on subscription TV drama services (the additional subscription TV drama services); and
(d) the sum of: (i) the part-channel provider’s new eligible drama
expenditure (within the meaning of section 103U) in relation to the first subscription TV drama service for a particular financial year (the shortfall year); and
(ii) the part-channel provider’s carry-forward eligible drama expenditure (within the meaning of section 103U) in relation to the first subscription TV drama service for the shortfall year;
is less than 10% of the part-channel provider’s total program expenditure (within the meaning of section 103U) in relation to the first package of programs for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the first licensee’s licence that, for the next financial year (the make-up year):
(a) the part-channel provider’s make-up expenditure is equal to the shortfall amount; or
(b) the first licensee’s make-up expenditure is equal to the first licensee’s subscriber percentage of the shortfall amount; or
(c) if the part-channel provider’s make-up expenditure is less than the shortfall amount—the first licensee’s make-up expenditure is equal to the first licensee’s subscriber percentage of the difference between the shortfall amount and the part-channel provider’s make-up expenditure.
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103W
268 Broadcasting Services Act 1992
Definitions
(3) In this section:
first licensee’s make-up expenditure means so much of the total expenditure incurred by the first licensee during the make-up year on new eligible drama programs not included, or available to be included, in the first package of programs as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.
first licensee’s subscriber percentage means the percentage worked out using the following formula:
monthly subscriber number, for a subscription TV drama service for a particular month, means the number worked out using the following formula:
part-channel provider’s make-up expenditure means so much of the total expenditure incurred by the part-channel provider during the make-up year on new eligible drama programs as the part-channel provider nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.
shortfall amount means the amount by which the sum of: (a) the part-channel provider’s new eligible drama expenditure
(within the meaning of section 103U) in relation to the first subscription TV drama service for the shortfall year; and
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103X
Broadcasting Services Act 1992 269
(b) the part-channel provider’s carry-forward eligible drama expenditure (within the meaning of section 103U) in relation to the first TV drama service for the shortfall year;
fell short of 10% of the part-channel provider’s total program expenditure (within the meaning of section 103U) in relation to the first package of programs for the shortfall year.
subscribers of additional licensees means the sum of the monthly subscriber numbers for the additional subscription TV drama services for each month of operation during the shortfall year.
subscribers of first licensee means the sum of the monthly subscriber numbers for the first subscription TV drama service for each month of operation during the shortfall year.
Subdivision F—Part-pass-through provider supplies package of programs
103X 10% minimum eligible drama expenditure— part-pass-through provider supplies package of programs
(1) If: (a) a licensee provides a subscription TV drama service; and (b) a person is a part-pass-through provider in relation to the
subscription TV drama service because the person supplies a package of programs;
it is a condition of the licence that, for each financial year of operation, the sum of:
(c) the licensee’s new eligible drama expenditure in relation to the subscription TV drama service; and
(d) the licensee’s carry-forward eligible drama expenditure in relation to the subscription TV drama service;
equals or exceeds 10% of the licensee’s total program expenditure in relation to the package of programs.
(2) In this section:
licensee’s carry-forward eligible drama expenditure, in relation to the subscription TV drama service, means the licensee’s
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103X
270 Broadcasting Services Act 1992
carry-forward eligible drama expenditure (within the meaning of subsection 103XA(2)) for the financial year.
licensee’s new eligible drama expenditure, in relation to the subscription TV drama service, means the sum of:
(a) so much of the total expenditure incurred by the licensee during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service; and
(b) so much of the total expenditure incurred by the part-pass-through provider during the financial year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.
licensee’s total program expenditure, in relation to the package of programs, means the total expenditure incurred by the licensee during the financial year in respect of the supply by the part-pass-through provider of the package of programs.
(2A) The licensee is not entitled to nominate, under the definition of licensee’s new eligible drama expenditure in subsection (2), so much of the designated script development expenditure incurred by the licensee and/or the part-pass-through provider during the financial year as exceeds 10% of the licensee’s new eligible drama expenditure in relation to the subscription TV drama service.
(3) If: (a) the licensee nominates the whole or a part of particular
expenditure under paragraph (a) of the definition of licensee’s new eligible drama expenditure in subsection (2); and
(b) the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the part-pass-through provider;
that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103XA
Broadcasting Services Act 1992 271
(4) Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1). Note: If the sum of the licensee’s new eligible drama expenditure and the
licensee’s carry-forward eligible drama expenditure is less than 10% of the licensee’s total program expenditure, the shortfall will have to be made up in the next financial year—see section 103Y.
103XA Carry-forward eligible drama expenditure
(1) This section applies if: (a) a licensee provides a subscription TV drama service; and (b) a person is a part-pass-through provider in relation to the
subscription TV drama service because the person supplies a package of programs; and
(c) the licensee’s new eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for a financial year exceeds 10% of the licensee’s total program expenditure (within the meaning of section 103X) in relation to the package of programs for the financial year.
(2) For the purposes of section 103X, the licensee’s carry-forward eligible drama expenditure in relation to the subscription TV drama service for the next following financial year is so much of the excess expenditure as the licensee nominates for the purposes of the application of this subsection in relation to the subscription TV drama service.
(3) Paragraph (1)(c) does not apply to so much of the licensee’s new eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service as was incurred before 1 January 2006.
103Y Shortfall of eligible drama expenditure—part-pass-through provider supplies package of programs
(1) This section applies if: (a) a licensee provides a subscription TV drama service; and
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103Y
272 Broadcasting Services Act 1992
(b) a person is a part-pass-through provider in relation to the subscription TV drama service because the person supplies a package of programs; and
(c) the sum of (i) the licensee’s new eligible drama expenditure (within
the meaning of section 103X) in relation to the subscription TV drama service for a particular financial year (the shortfall year); and
(ii) the licensee’s carry-forward eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for the shortfall year;
is less than 10% of the licensee’s total program expenditure (within the meaning of section 103X) in relation to the package of programs for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the licensee’s licence that, for the next financial year (the make-up year), the licensee’s make-up expenditure is equal to the shortfall amount.
Definitions
(3) In this section:
licensee’s make-up expenditure, in relation to the subscription TV drama service, means the sum of:
(a) so much of the total expenditure incurred by the licensee during the make-up year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service; and
(b) so much of the total expenditure incurred by the part-pass-through provider during the make-up year on new eligible drama programs as the licensee nominates for the purposes of the application of subsection (2) in relation to the subscription TV drama service.
shortfall amount means the amount by which the sum of:
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103Z
Broadcasting Services Act 1992 273
(a) the licensee’s new eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for the shortfall year; and
(b) the licensee’s carry-forward eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for the shortfall year;
fell short of 10% of the licensee’s total program expenditure (within the meaning of section 103X) in relation to the package of programs for the shortfall year.
Double counting
(4) If: (a) the licensee nominates the whole or a part of particular
expenditure under paragraph (a) of the definition of licensee’s make-up expenditure in subsection (3); and
(b) the whole or part, as the case may be, of the expenditure is attributable to a new eligible drama program on which expenditure was incurred by the part-pass-through provider;
that new eligible drama program is to be disregarded in determining the expenditure that may be nominated by the licensee under paragraph (b) of that definition.
Subdivision G—Licensee supplies part of program material
103Z 10% minimum eligible drama expenditure—licensee supplies part of program material
(1) If: (a) a licensee provides a subscription TV drama service; and (b) some, but not all, of the program material that is televised by
the licensee on the subscription TV drama service consists of program material included in a package of programs supplied to the licensee by:
(i) a part-channel provider; or (ii) a part-pass-through provider;
in relation to the subscription TV drama service; and
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103Z
274 Broadcasting Services Act 1992
(c) the remainder of the program material that is televised by the licensee on the subscription TV drama service consists predominantly of drama programs;
it is a condition of the licence that, for each financial year of operation, the sum of:
(d) the licensee’s new eligible drama expenditure in relation to the subscription TV drama service; and
(e) the licensee’s carry-forward eligible drama expenditure in relation to the subscription TV drama service;
equals or exceeds 10% of the licensee’s total program expenditure in relation to the subscription TV drama service.
(2) In this section:
licensee’s carry-forward eligible drama expenditure, in relation to the subscription TV drama service, means the licensee’s carry-forward eligible drama expenditure (within the meaning of subsection 103ZAA(2)) for the financial year.
licensee’s new eligible drama expenditure, in relation to the subscription TV drama service, means so much of the total expenditure incurred by the licensee during the financial year on new eligible drama programs not included in that package as the licensee nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.
licensee’s total program expenditure, in relation to the subscription TV drama service, means the total expenditure incurred by the licensee during the financial year on program material that is:
(a) not included in that package; and (b) for televising, or available for televising, by the licensee on
the subscription TV drama service.
(3) The licensee is not entitled to nominate, under the definition of licensee’s new eligible drama expenditure in subsection (2), so much of the designated script development expenditure incurred by the licensee during the financial year as exceeds 10% of the licensee’s new eligible drama expenditure in relation to the subscription TV drama service.
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103ZAA
Broadcasting Services Act 1992 275
103ZAA Carry-forward eligible drama expenditure
(1) This section applies if: (a) a licensee provides a subscription TV drama service; and (b) some, but not all, of the program material that is televised by
the licensee on the subscription TV drama service consists of program material included in a package of programs supplied to the licensee by:
(i) a part-channel provider; or (ii) a part-pass-through provider;
in relation to the subscription TV drama service; and (c) the remainder of the program material that is televised by the
licensee on the subscription TV drama service consists predominantly of drama programs; and
(d) the licensee’s new eligible drama expenditure (within the meaning of section 103Z) in relation to the subscription TV drama service for a financial year exceeds 10% of the licensee’s total program expenditure (within the meaning of section 103Z) in relation to the subscription TV drama service for the financial year.
(2) For the purposes of section 103Z, the licensee’s carry-forward eligible drama expenditure in relation to the subscription TV drama service for the next following financial year is so much of the excess expenditure as the licensee nominates for the purposes of the application of this subsection in relation to the subscription TV drama service.
(3) Paragraph (1)(c) does not apply to so much of the licensee’s new eligible drama expenditure (within the meaning of section 103Z) in relation to the subscription TV drama service as was incurred before 1 January 2006.
Subdivision H—Annual returns
103ZA Licensee to lodge annual return
(1) A licensee who provides one or more subscription TV drama services must, within 60 days after the end of each financial year of operation, give to the ACMA:
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103ZB
276 Broadcasting Services Act 1992
(a) a return, in the approved form, containing such information as is required by that form in relation to the application of this Division in connection with those services; and
(b) a certificate by a registered auditor, in the approved form, stating that, in the opinion of the auditor, the return, in so far as it relates to expenditure incurred by the licensee, is correct.
(2) A person is guilty of an offence if: (a) the person is subject to a requirement under subsection (1);
and (b) the person intentionally contravenes that requirement.
Penalty: 1,000 penalty units.
(3) A reference in this section to an approved form is a reference to a form approved, in writing, by the ACMA for the purposes of the provision in which the expression appears.
103ZB Channel provider and part-channel provider to lodge annual return
(1) If a person is a channel provider or a part-channel provider in relation to one or more subscription TV drama services provided by a licensee during a financial year, the person must, within 60 days after the end of that financial year, give to the ACMA:
(a) a return, in the approved form, containing such information as is required by that form in relation to the application of this Division in connection with those services; and
(b) a certificate by a registered auditor, in the approved form, stating that, in the opinion of the auditor, the return is correct.
(2) A person is guilty of an offence if: (a) the person is subject to a requirement under subsection (1);
and (b) the person intentionally contravenes that requirement.
Penalty: 1,000 penalty units.
(3) If:
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103ZC
Broadcasting Services Act 1992 277
(a) a person is a channel provider or a part-channel provider in relation to one or more subscription TV drama services provided by a licensee during a financial year; and
(b) the person contravenes subsection (1) in relation to the financial year;
the ACMA must inform the licensee, in writing, of that contravention as soon as practicable after the ACMA becomes aware of that contravention.
(4) A reference in this section to an approved form is a reference to a form approved, in writing, by the ACMA for the purposes of the provision in which the expression appears.
103ZC ACMA may inquire into the correctness of an annual return
The ACMA may make whatever inquiries it thinks necessary or desirable in order to determine whether a return given to it under this Subdivision contains correct information.
103ZD Nominations to be attached to annual returns
Licensee
(1) A nomination that: (a) is made by a licensee; and (b) relates to the application of a provision of this Division in
respect of a financial year; must:
(c) be in writing; and (d) accompany the return given by the licensee under
section 103ZA for that financial year.
Channel provider and part-channel provider
(2) A nomination that: (a) is made by a person who is a channel provider or a
part-channel provider in relation to one or more subscription TV drama services provided by a licensee during a financial year; and
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103ZE
278 Broadcasting Services Act 1992
(b) relates to the application of a provision of this Division in respect of that financial year;
must: (c) be in writing; and (d) accompany the relevant return given by the channel provider
or the part-channel provider, as the case may be, under section 103ZB for that financial year.
Subdivision I—Compliance certificates
103ZE ACMA to issue compliance certificate
Channel provider
(1) If: (a) a licensee provides a subscription TV drama service; and (b) a person is a channel provider in relation to the subscription
TV drama service because the person supplies a channel; and (c) 60 days pass after the end of a particular financial year of
operation; then, as soon as practicable, the ACMA must:
(d) give the licensee a written certificate stating: (i) whether the amount worked out under subsection (1A)
fell short of 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the channel for the financial year; and
(ii) if so, that an amount specified in the certificate is the amount of the shortfall; and
(e) give the channel provider a copy of that certificate.
(1A) For the purposes of subparagraph (1)(d)(i), the amount is the sum of:
(a) the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the subscription TV drama service for the financial year; and
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103ZE
Broadcasting Services Act 1992 279
(b) the channel provider’s carry-forward eligible drama expenditure (within the meaning of section 103N) in relation to the subscription TV drama service for the financial year.
Pass-through provider
(2) If: (a) a licensee provides a subscription TV drama service; and (b) a person is a pass-through provider in relation to the
subscription TV drama service because the person supplies a channel; and
(c) 60 days pass after the end of a particular financial year of operation;
then, as soon as practicable, the ACMA must give the licensee a written certificate stating:
(d) whether the sum of: (i) the licensee’s new eligible drama expenditure (within
the meaning of section 103R) in relation to the subscription TV drama service for the financial year; and
(ii) the licensee’s carry-forward eligible drama expenditure (within the meaning of section 103R) in relation to the subscription TV drama service for the financial year;
fell short of 10% of the licensee’s total program expenditure (within the meaning of section 103R) in relation to the channel for the financial year; and
(e) if so, that an amount specified in the certificate is the amount of the shortfall.
Part-channel provider
(3) If: (a) a licensee provides a subscription TV drama service; and (b) a person is a part-channel provider in relation to the
subscription TV drama service because the person supplies a package of programs; and
(c) 60 days pass after the end of a particular financial year of operation;
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103ZE
280 Broadcasting Services Act 1992
then, as soon as practicable, the ACMA must: (d) give the licensee a written certificate stating:
(i) whether the amount worked out under subsection (3A) fell short of 10% of the part-channel provider’s total program expenditure (within the meaning of section 103U) in relation to the package of programs for the financial year; and
(ii) if so, that an amount specified in the certificate is the amount of the shortfall; and
(e) give the part-channel provider a copy of that certificate.
(3A) For the purposes of subparagraph (3)(d)(i), the amount is the sum of:
(a) the part-channel provider’s new eligible drama expenditure (within the meaning of section 103U) in relation to the subscription TV drama service for the financial year; and
(b) the part-channel provider’s carry-forward eligible drama expenditure (within the meaning of section 103U) in relation to the subscription TV drama service for the financial year.
Part-pass-through provider
(4) If: (a) a licensee provides a subscription TV drama service; and (b) a person is a part-pass-through provider in relation to the
subscription TV drama service because the person supplies a package of programs; and
(c) 60 days pass after the end of a particular financial year of operation;
then, as soon as practicable, the ACMA must give the licensee a written certificate stating:
(d) whether the sum of: (i) the licensee’s new eligible drama expenditure (within
the meaning of section 103X) in relation to the subscription TV drama service for the financial year; and
Subscription television broadcasting services Part 7 Eligible drama expenditure Division 2A
Section 103ZF
Broadcasting Services Act 1992 281
(ii) the licensee’s carry-forward eligible drama expenditure (within the meaning of section 103X) in relation to the subscription TV drama service for the financial year;
fell short of 10% of the licensee’s total program expenditure (within the meaning of section 103X) in relation to the package of programs for the financial year; and
(e) if so, that an amount specified in the certificate is the amount of the shortfall.
Note: For the evidentiary effect of a compliance certificate, see section 103ZF.
103ZF Compliance certificate to be prima facie evidence
(1) A compliance certificate is, in proceedings arising under this Act, prima facie evidence of the matters in the certificate.
(2) The ACMA may certify that a document is a copy of a compliance certificate.
(3) This section applies to the certified copy as if it were the original.
Subdivision J—Miscellaneous
103ZG Anti-avoidance—transactions between persons not at arm’s length
(1) If: (a) a person has incurred expenditure in connection with a
transaction where the parties to the transaction are not dealing with each other at arm’s length in relation to the transaction; and
(b) apart from this section, the expenditure is counted for the purposes of the application of this Division; and
(c) the amount of the expenditure is greater or less than is reasonable;
the ACMA may, by writing, determine that the amount of the expenditure is taken, for the purposes of the application of this Division in relation to the parties to the transaction, to be the
Part 7 Subscription television broadcasting services Division 2A Eligible drama expenditure
Section 103ZH
282 Broadcasting Services Act 1992
amount that would have been reasonable if the parties were dealing with each other at arm’s length.
(2) A determination under subsection (1) has effect accordingly.
103ZH Expenditure to be expressed in Australian currency
(1) For the purposes of this Division, expenditure is to be expressed in Australian currency.
(2) For the purposes of this Division, if expenditure is incurred otherwise than in Australian currency, the expenditure is to be expressed in Australian currency at a rate equal to whichever of the following is applicable:
(a) if the expenditure is incurred in connection with a transaction and the parties to the transaction have agreed on the exchange rate that is applicable to the expenditure—that exchange rate; or
(b) in any other case—the exchange rate applicable at the time when the expenditure is incurred.
103ZJ Review before 31 March 2003
(1) Before 31 March 2003, the Minister must cause to be conducted a review relating to Australian and New Zealand content on subscription television broadcasting services.
(2) The Minister must cause to be prepared a report of a review under subsection (1).
(3) The Minister must cause copies of a report under this section to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.
Subscription television broadcasting services Part 7 Miscellaneous Division 6
Section 113
Broadcasting Services Act 1992 283
Division 6—Miscellaneous
113 Transfer of subscription television broadcasting licence
A subscription television broadcasting licensee may transfer the subscription television broadcasting licence to another person.
114 Surrender of subscription television broadcasting licence
A subscription television broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence.
115 Minister may protect the free availability of certain types of programs
(1) The Minister may, by notice published in the Gazette, specify an event, or events of a kind, the televising of which should, in the opinion of the Minister, be available free to the general public.
(1A) The Minister may, by notice published in the Gazette, amend a notice under subsection (1) to specify an additional event, or events of a kind, the televising of which should, in the opinion of the Minister, be available free to the public.
(1AA) Subject to subsection (2), an event specified in a notice under subsection (1) is taken to be removed from the notice 2,016 hours before the start of the event, unless the Minister publishes in the Gazette before that time a declaration that the event continues to be specified in the notice after that time.
(1AB) The Minister may publish a declaration under subsection (1AA) only if the Minister is satisfied that at least one commercial television broadcasting licensee or national broadcaster has not had a reasonable opportunity to acquire the right to televise the event concerned.
(1B) Subject to subsections (1AA) and (2), an event specified in a notice under subsection (1) is taken to be removed from the notice 168 hours after the end of the event, unless the Minister
Part 7 Subscription television broadcasting services Division 6 Miscellaneous
Section 115A
284 Broadcasting Services Act 1992
publishes in the Gazette before that time a declaration that the event continues to be specified in the notice after that time.
(2) The Minister may, by notice published in the Gazette, amend a notice under subsection (1) to remove an event from the notice. Note: The following are examples of situations in which the Minister might
exercise the power to remove an event from a notice:
Example 1
The national broadcasters and commercial television broadcasting licensees have had a real opportunity to acquire the right to televise an event, but none of them has acquired the right within a reasonable time. The Minister is of the opinion that removing the event from the notice is likely to have the effect that the event will be televised to a greater extent than if it remained on the notice.
Example 2
A commercial television broadcasting licensee has acquired the right to televise an event, but has failed to televise the event or has televised only an unreasonably small proportion of the event. The Minister is of the opinion that removing that event, or another event, from the notice is likely to have the effect that the removed event will be televised to a greater extent than it would be if it remained on the notice.
(3) Notices and declarations under this section are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.
115A Review of anti-siphoning provisions
(1) Before 31 December 2009, the Minister must cause to be conducted a review of the following matters:
(a) the operation of section 115; (b) the operation of paragraph 7(1)(ob) of Schedule 2; (c) the operation of paragraph 10(1)(e) and subclauses 10(1A)
and (1B) of Schedule 2; (d) the operation of Part 4A of Schedule 4; (e) whether section 115 should be amended or repealed; (f) whether paragraph 7(1)(ob) of Schedule 2 should be
amended or repealed; (g) whether paragraph 10(1)(e) and subclauses 10(1A) and (1B)
of Schedule 2 should be amended or repealed;
Subscription television broadcasting services Part 7 Miscellaneous Division 6
Section 116
Broadcasting Services Act 1992 285
(h) whether Part 4A of Schedule 4 should be amended or repealed.
(2) The Minister must cause to be prepared a report of a review under subsection (1).
(3) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the report.
116 Certain arrangements not to result in control or in persons being associates
(1) A person who is in a position to exercise control of a satellite subscription television broadcasting licence is not taken to be in a position to exercise control of another satellite subscription television broadcasting licence only because of a provision of a contract, arrangement or understanding under which all or any of the following things are done:
(a) a subscriber management system is provided for subscribing to either or both of the subscription television broadcasting services being provided under those licences;
(b) the subscription television broadcasting services being provided under those licences are marketed on a joint basis;
(c) joint use is made of facilities for: (i) transmitting programs; or
(ii) the operation of disabling devices for restricting access to certain programs;
(d) such other things as are prescribed.
(2) Subsection (1) does not apply to a contract, arrangement or understanding under which, or as a result of which, a person who is in a position to exercise control of a satellite subscription television broadcasting service comes to be in a position to exercise control (whether directly or indirectly) of the selection or provision of a significant proportion of the programs broadcast by another satellite subscription television broadcasting licensee.
Part 7 Subscription television broadcasting services Division 6 Miscellaneous
Section 116A
286 Broadcasting Services Act 1992
116A Use of additional capacity
Services under a satellite subscription television broadcasting licence may use capacity other than high performance beams on a subscription television satellite for the purpose of ensuring that as much of Australia as possible is covered by those services.
116B Application of section 51 of the Competition and Consumer Act
Nothing in this Part is to be taken as specifically authorising any act or thing for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
Subscription broadcasting and narrowcasting class licences Part 8
Section 117
Broadcasting Services Act 1992 287
Part 8—Subscription broadcasting and narrowcasting class licences
117 Determination of class licences
The ACMA may, by notice published in the Gazette, determine a class licence for the provision of:
(a) subscription radio broadcasting services; or (b) subscription radio narrowcasting services; or (c) subscription television narrowcasting services; or (d) open narrowcasting radio services; or (e) open narrowcasting television services.
118 Conditions of class licences
(1) The ACMA may include in a class licence conditions that, having regard to:
(a) the objects of this Act and the regulatory policy set out in section 4; and
(b) the matters referred to in section 22; it considers should be imposed on the provision of services under that licence.
(2) Different conditions may be specified for: (a) different categories of broadcasting services; and (b) services providing radio programs and services providing
television programs.
(3) Each class licence is subject to the conditions set out in Part 7 of Schedule 2.
119 Matters to which conditions may relate
(1) Conditions of class licences must be relevant to the broadcasting services to which those licences relate.
Part 8 Subscription broadcasting and narrowcasting class licences
Section 120
288 Broadcasting Services Act 1992
(2) Without limiting the range of conditions that may be imposed, the ACMA may impose a condition on a class 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; or
(c) designed to ensure compliance with the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995.
120 Variation of class licences
(1) The ACMA may, by notice published in the Gazette: (a) vary or revoke conditions specified in a class licence; or (b) specify additional conditions of the licence.
(2) Action taken under subsection (1) must not be inconsistent with: (a) determinations and clarifications under section 19; or (b) conditions set out in Part 7 of Schedule 2.
(3) Before publishing a notice under subsection (1), the ACMA must: (a) publicise its intention to vary the licence, stating:
(i) the subject matter of the proposed variation; and (ii) a place at which copies of the licence and of the
proposed variation may be bought; and (iii) an address to which representations concerning the
proposed variation can be sent; and (iv) the last date for making those representations; and
(b) give due consideration to any representations so made.
121 Class licences and variations to be disallowable by the Parliament
Class licences, and instruments varying class licences, are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.
Restrictions on subscription television broadcasting services in regional areas etc. Part 8A
Section 121A
Broadcasting Services Act 1992 289
Part 8A—Restrictions on subscription television broadcasting services in regional areas etc.
121A Simplified outline
The following is a simplified outline of this Part:
• Unless the ACMA gives permission, a subscription television broadcasting licensee, or a related body corporate, must not provide a television service in a regional area if 3 or more consecutive program items transmitted on that service are identical to any 3 or more consecutive program items transmitted by a metropolitan commercial television broadcasting licensee during prime viewing hours.
121B Definitions
In this Part:
licence area means a licence area of a commercial television broadcasting licence.
metropolitan commercial television broadcasting licensee means a commercial television broadcasting licensee whose licence area is a metropolitan licence area.
metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:
(a) New South Wales; or (b) Victoria; or (c) Queensland; or (d) Western Australia; or (e) South Australia.
prime viewing hours means the hours: (a) beginning at 6 pm each day or, if another time is prescribed,
beginning at that prescribed time each day; and
Part 8A Restrictions on subscription television broadcasting services in regional areas etc.
Section 121C
290 Broadcasting Services Act 1992
(b) ending at 10.30 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.
program item means a television program, but does not include: (a) advertising or sponsorship matter (whether or not of a
commercial kind); or (b) a news program that:
(i) is not a regularly scheduled news program; and (ii) is solely or principally about a matter of national
significance; or (c) a program that covers an Olympic Games that is being held
at the time the program is transmitted; or (d) a program that covers a Paralympic Games that is being held
at the time the program is transmitted; or (e) a program that covers a Commonwealth Games that is being
held at the time the program is transmitted.
regional area means an area that is not part of a metropolitan licence area.
related body corporate has the same meaning as in the Corporations Act 2001.
121C Identical program items
For the purposes of this Part, in determining whether a program item is identical to another program item, disregard any differences between the techniques used to transmit the program items.
121D Continuity of program items
(1) For the purposes of this Part, any break during the transmission of a program item for the purposes of the transmission of other matter:
(a) is taken not to affect the continuity of the program item; and (b) is to be counted in working out the length of the program
item; and
Restrictions on subscription television broadcasting services in regional areas etc. Part 8A
Section 121E
Broadcasting Services Act 1992 291
(c) despite paragraph (b), is to be ignored in working out whether the program item is identical to another program item.
(2) For the purposes of this Part, any break between program items for the purposes of the transmission of other matter:
(a) is taken not to affect the consecutiveness of the program items; and
(b) is to be counted in working out the total length of the program items.
121E ACMA permission is required to provide certain television services in regional areas
(1) A subscription television broadcasting licensee, or a related body corporate of a subscription television broadcasting licensee, engages in conduct to which this subsection applies if, without the written permission of the ACMA, the subscription television broadcasting licensee or the related body corporate, as the case may be, provides:
(a) a subscription television broadcasting service; or (b) a subscription television narrowcasting service; or (c) an open narrowcasting television service;
in a regional area, where, to the knowledge of the subscription television broadcasting licensee or the related body corporate, as the case may be, 3 or more consecutive program items transmitted on that service during a particular period:
(d) the total length of which is the same as, or shorter than, the length of prime viewing hours; and
(e) that occurs within the 24 hour period beginning at the start of prime viewing hours;
are identical to any 3 or more consecutive program items transmitted by a metropolitan commercial television broadcasting licensee during those prime viewing hours.
(2) A subscription television broadcasting licensee, or a related body corporate of a subscription television broadcasting licensee, must take all reasonable steps to ensure that the subscription television broadcasting licensee or the related body corporate, as the case
Part 8A Restrictions on subscription television broadcasting services in regional areas etc.
Section 121E
292 Broadcasting Services Act 1992
may be, does not engage in conduct to which subsection (1) applies.
International broadcasting licences Part 8B Introduction Division 1
Section 121F
Broadcasting Services Act 1992 293
Part 8B—International broadcasting licences
Division 1—Introduction
121F Simplified outline
The following is a simplified outline of this Part:
• Applications may be made to the ACMA for the allocation of international broadcasting licences.
• The ACMA may only reject an application for the allocation of an international broadcasting licence to a person if:
(a) the ACMA is not satisfied that the person is an Australian company; or
(b) the ACMA is not satisfied that the person is a suitable applicant; or
(c) the Minister for Foreign Affairs is of the opinion that the international broadcasting service is likely to be contrary to Australia’s national interest.
• A licensee must keep records of broadcasts for 90 days.
• An international broadcasting licence may only be cancelled if:
(a) the licensee does not commence to provide an international broadcasting service within 2 years; or
(b) the Minister for Foreign Affairs is of the opinion that the international broadcasting service is likely to be contrary to Australia’s national interest.
Part 8B International broadcasting licences Division 1 Introduction
Section 121FAA
294 Broadcasting Services Act 1992
• The ACMA may make declarations (nominated broadcaster declarations) that allow international broadcasting licences and related transmitter licences to be held by different persons, so long as the transmitter licence is held by an Australian company.
• If a nominated broadcaster declaration is in force:
(a) the international broadcasting licence may be issued to a company that is not an Australian company; and
(b) the holder of the transmitter licence must keep records of broadcasts for 90 days; and
(c) the holder of the transmitter licence may receive notices on behalf of the holder of the international broadcasting licence.
121FAA Definitions
In this Part:
company means a body corporate.
holder, in relation to a nominated broadcaster declaration, means the person who applied for the declaration.
nominated broadcaster declaration means a declaration under section 121FLC.
transmitter licence has the same meaning as in the Radiocommunications Act 1992.
International broadcasting licences Part 8B Allocation of international broadcasting licences Division 2
Section 121FA
Broadcasting Services Act 1992 295
Division 2—Allocation of international broadcasting licences
121FA Application for international broadcasting licence
(1) A person may apply to the ACMA for a licence to provide an international broadcasting service if no nominated broadcaster declaration is in force in relation to that service.
(1A) If a person is the holder of a nominated broadcaster declaration in relation to an international broadcasting service proposed to be provided by another person (the content provider):
(a) the holder of the declaration may, on behalf of the content provider, apply to the ACMA for a licence authorising the content provider to provide the international broadcasting service; and
(b) if an application is made under paragraph (a)—the content provider is taken to be the applicant for the licence.
(1B) An application under this section may only be made on the basis of one licence per service.
(2) An application under this section 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.
121FB Corporate status and suitability
(1) If the ACMA: (a) is satisfied that an applicant under subsection 121FA(1) for
an international broadcasting licence is registered as a company under Part 2A.2 of the Corporations Act 2001; and
(b) does not decide that subsection 121FC(1) applies to the applicant;
Part 8B International broadcasting licences Division 2 Allocation of international broadcasting licences
Section 121FB
296 Broadcasting Services Act 1992
the ACMA must: (c) refer the application to the Minister for Foreign Affairs; and (d) give the Minister for Foreign Affairs a report about whether
the proposed international broadcasting service concerned complies with the international broadcasting guidelines.
(2) If the ACMA: (a) is not satisfied that an applicant under subsection 121FA(1)
for an international broadcasting licence is registered as a company under Part 2A.2 of the Corporations Act 2001; or
(b) decides that subsection 121FC(1) applies to an applicant under subsection 121FA(1) for an international broadcasting licence;
the ACMA must refuse to allocate an international broadcasting licence to the applicant.
(3) If, under subsection (2), the ACMA refuses to allocate an international broadcasting licence to an applicant, the ACMA must give written notice of the refusal to the applicant.
(4) If an application for an international broadcasting licence is made under subsection 121FA(1), the ACMA must make reasonable efforts to either:
(a) take action under subsection (1) of this section; or (b) refuse to allocate the licence;
within 30 days after the application was made.
(5) If the ACMA: (a) is satisfied that an applicant under subsection 121FA(1A) for
an international broadcasting licence is a company; and (b) does not decide that subsection 121FC(1) applies to the
applicant; the ACMA must:
(c) refer the application to the Minister for Foreign Affairs; and (d) give the Minister for Foreign Affairs a report about whether
the proposed international broadcasting service concerned complies with the international broadcasting guidelines.
International broadcasting licences Part 8B Allocation of international broadcasting licences Division 2
Section 121FC
Broadcasting Services Act 1992 297
(6) If the ACMA: (a) is not satisfied that an applicant under subsection 121FA(1A)
for an international broadcasting licence is a company; or (b) decides that subsection 121FC(1) applies to an applicant
under subsection 121FA(1A) for an international broadcasting licence;
the ACMA must refuse to allocate an international broadcasting licence to the applicant.
(7) If, under subsection (6), the ACMA refuses to allocate an international broadcasting licence to an applicant, the ACMA must give written notice of the refusal to:
(a) the applicant; and (b) the holder of the nominated broadcaster declaration
concerned.
(8) If an application for an international broadcasting licence is made under subsection 121FA(1A), the ACMA must make reasonable efforts to either:
(a) take action under subsection (5) of this section; or (b) refuse to allocate the licence;
within 30 days after the application was made.
121FC Unsuitable applicant
(1) The ACMA may, if it is satisfied that allowing a particular company to provide an international broadcasting service under an international 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.
(2) In deciding whether such a risk exists, the ACMA is to take into account:
(a) the business record of the company; and
Part 8B International broadcasting licences Division 2 Allocation of international broadcasting licences
Section 121FD
298 Broadcasting Services Act 1992
(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 an international broadcasting licence were allocated to the company, in a position to control 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).
121FD Australia’s national interest
Direction not to allocate licence
(1) If: (a) an application for an international broadcasting licence is
referred to the Minister for Foreign Affairs under subsection 121FB(1) or (5); and
(b) the Minister for Foreign Affairs is of the opinion that the proposed international broadcasting service concerned is likely to be contrary to Australia’s national interest;
the Minister for Foreign Affairs may, by written notice given to the ACMA, direct the ACMA not to allocate an international broadcasting licence to the applicant.
No objection to allocation of licence
(2) If: (a) an application for an international broadcasting licence is
referred to the Minister for Foreign Affairs under subsection 121FB(1) or (5); and
(b) the Minister for Foreign Affairs is not of the opinion that the proposed international broadcasting service concerned is likely to be contrary to Australia’s national interest;
International broadcasting licences Part 8B Allocation of international broadcasting licences Division 2
Section 121FD
Broadcasting Services Act 1992 299
the Minister for Foreign Affairs must, by written notice given to the ACMA, inform the ACMA that he or she has no objection to the allocation of an international broadcasting licence to the applicant.
Australia’s national interest
(3) For the purposes of this section, in determining whether a proposed international broadcasting service is likely to be contrary to Australia’s national interest, the Minister for Foreign Affairs must have regard to the likely effect of the proposed service on Australia’s international relations.
(4) For the purposes of this section, in determining whether a proposed international broadcasting service is likely to be contrary to Australia’s national interest, the Minister for Foreign Affairs may have regard to a report given by the ACMA under subsection 121FB(1) or (5). This subsection does not limit the material to which the Minister for Foreign Affairs may have regard.
Decision to be made within 60 days
(5) If an application for an international broadcasting licence is referred to the Minister for Foreign Affairs under subsection 121FB(1) or (5), the Minister for Foreign Affairs must make reasonable efforts to either:
(a) direct the ACMA under subsection (1) of this section; or (b) inform the ACMA under subsection (2) of this section;
within 60 days after the referral.
Notification
(6) If the Minister for Foreign Affairs directs the ACMA not to allocate an international broadcasting licence to an applicant, the ACMA must give written notice of the direction to:
(a) in all cases—the applicant; and (b) in the case of an application under subsection 121FA(1A)—
the holder of the nominated broadcaster declaration concerned.
Part 8B International broadcasting licences Division 2 Allocation of international broadcasting licences
Section 121FE
300 Broadcasting Services Act 1992
121FE Allocation of licence
If the Minister for Foreign Affairs informs the ACMA under subsection 121FD(2) that he or she has no objection to the allocation of an international broadcasting licence to an applicant, the ACMA must allocate the licence to the applicant.
International broadcasting licences Part 8B Obligations of international broadcasting licensees Division 3
Section 121FF
Broadcasting Services Act 1992 301
Division 3—Obligations of international broadcasting licensees
121FF Conditions of international broadcasting licences
(1) Each international broadcasting licence is subject to the following conditions:
(a) the licensee must cause a record of programs broadcast on the international broadcasting service concerned to be made in a form approved in writing by the ACMA;
(b) the licensee must retain in its custody a record so made for a period of 90 days after the broadcast;
(c) the licensee must, without charge, make available to the ACMA, on request, any specified record made by the licensee under paragraph (a) that has been retained by the licensee (whether or not the licensee is, at the time of the request, under an obligation to retain the record).
(2) This section does not apply to an international broadcasting licence if a nominated broadcaster declaration is in force in relation to the international broadcasting service concerned. Note: Corresponding conditions apply to nominated broadcaster
declarations—see section 121FLE.
Part 8B International broadcasting licences Division 4 Remedies
Section 121FG
302 Broadcasting Services Act 1992
Division 4—Remedies
121FG Prohibition on providing an international broadcasting service without a licence
(1) A person is guilty of an offence if the person: (a) intentionally provides an international broadcasting service;
and (b) does not have an international broadcasting licence to
provide the service, and is reckless as to that fact.
Penalty: 20,000 penalty units.
(2) A person who contravenes subsection (1) is guilty of a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
(3) A person must not provide an international broadcasting service if the person does not have a licence to provide that service.
(4) Subsection (3) is a civil penalty provision.
(5) A person who contravenes subsection (3) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
121FH Remedial directions—unlicensed international broadcasting services
If the ACMA is satisfied that a person has breached, or is breaching, subsection 121FG(3), the ACMA may, by written notice given to the person, direct the person to take action directed towards ensuring that the person does not breach that section, or is unlikely to breach that section, in the future.
121FHA Breach of remedial direction—offence
(1) A person commits an offence if:
International broadcasting licences Part 8B Remedies Division 4
Section 121FHB
Broadcasting Services Act 1992 303
(a) the person has been given a notice under section 121FH; and (b) the person engages in conduct; and (c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
(3) In this section:
engage in conduct means: (a) do an act; or (b) omit to perform an act.
121FHB Breach of remedial direction—civil penalty provision
(1) A person must comply with a notice under section 121FH.
(2) Subsection (1) is a civil penalty provision.
(3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
121FJ Offence for breach of conditions of international broadcasting licence
(1) A person is guilty of an offence if: (a) the person is an international broadcasting licensee; and (b) the person engages in conduct; and (c) the person’s conduct breaches a condition of the licence.
Penalty: 2,000 penalty units.
(2) In this section:
engage in conduct means:
Part 8B International broadcasting licences Division 4 Remedies
Section 121FJA
304 Broadcasting Services Act 1992
(a) do an act; or (b) omit to perform an act.
121FJA Civil penalty provision relating to breach of conditions of international broadcasting licences
(1) An international broadcasting licensee must not breach a condition of the licence.
(2) Subsection (1) is a civil penalty provision.
(3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
121FJB Remedial directions—licence conditions
(1) If the ACMA is satisfied that an international broadcasting licensee has breached, or is breaching, a condition of the licence, the ACMA may, by written notice given to the licensee, direct the licensee to take action directed towards ensuring that the licensee does not breach that condition, or is unlikely to breach that condition, in the future.
(2) The following are examples of the kinds of direction that may be given to a licensee under subsection (1):
(a) a direction that the licensee implement effective administrative systems for monitoring compliance with a condition of the licence;
(b) a direction that the licensee implement a system designed to give the licensee’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a condition of the licence, in so far as those requirements affect the employees, agents or contractors concerned.
121FJC Breach of remedial direction—offence
(1) A person commits an offence if: (a) the person has been given a notice under section 121FJB; and
International broadcasting licences Part 8B Remedies Division 4
Section 121FJD
Broadcasting Services Act 1992 305
(b) the person engages in conduct; and (c) the person’s conduct contravenes a requirement in the notice.
Penalty: 2,000 penalty units.
(2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
(3) In this section:
engage in conduct means: (a) do an act; or (b) omit to perform an act.
121FJD Breach of remedial direction—civil penalty provision
(1) A person must comply with a notice under section 121FJB.
(2) Subsection (1) is a civil penalty provision.
(3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
121FK Cancellation of licence if service does not commence within 2 years
(1) If: (a) a person has been allocated an international broadcasting
licence; and (b) the person has not commenced to provide the international
broadcasting service concerned within 2 years after the allocation of the licence;
the ACMA may cancel the licence.
Part 8B International broadcasting licences Division 4 Remedies
Section 121FL
306 Broadcasting Services Act 1992
Notice of intention to cancel
(2) If the ACMA proposes to cancel a licence under subsection (1), 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 cancellation.
121FL Formal warning, or cancellation or suspension of licence, where service is contrary to Australia’s national interest
Formal warning
(1) If: (a) an international broadcasting service is provided under an
international broadcasting licence; and (b) the Minister for Foreign Affairs is of the opinion that the
service is contrary to Australia’s national interest; and (c) the Minister for Foreign Affairs, by written notice given to
the ACMA, directs the ACMA to issue a formal warning to the licensee;
the ACMA must issue a formal warning to the licensee.
Suspension of licence
(3) If: (a) an international broadcasting service is provided under an
international broadcasting licence; and (b) the Minister for Foreign Affairs is of the opinion that the
service is contrary to Australia’s national interest; and (c) the Minister for Foreign Affairs, by written notice given to
the ACMA, directs the ACMA to suspend the licence for the period specified in the direction;
the ACMA must suspend the licence for the period specified in the direction.
Cancellation of licence
(5) If:
International broadcasting licences Part 8B Remedies Division 4
Section 121FL
Broadcasting Services Act 1992 307
(a) an international broadcasting service is provided under an international broadcasting licence; and
(b) the Minister for Foreign Affairs is of the opinion that the service is contrary to Australia’s national interest; and
(c) the Minister for Foreign Affairs, by written notice given to the ACMA, directs the ACMA to cancel the licence;
the ACMA must cancel the licence.
(6) If the Minister for Foreign Affairs proposes to direct the ACMA to cancel an international broadcasting licence, he or she must direct the ACMA to:
(a) give the licensee written notice of his or her intention; and (b) give the licensee a reasonable opportunity to send a
submission to the ACMA in relation to the proposed direction; and
(c) forward any such submission to the Minister for Foreign Affairs.
Australia’s national interest
(8) For the purposes of this section, in determining whether an international broadcasting service is contrary to Australia’s national interest, the Minister for Foreign Affairs must have regard to the effect of the service on Australia’s international relations.
(9) For the purposes of this section, in determining whether an international broadcasting service is contrary to Australia’s national interest, the Minister for Foreign Affairs may have regard to a report given by the ACMA under section 121FM. This subsection does not limit the material to which the Minister for Foreign Affairs may have regard.
Part 8B International broadcasting licences Division 4A Nominated broadcaster declarations
Section 121FLA
308 Broadcasting Services Act 1992
Division 4A—Nominated broadcaster declarations
121FLA Object of this Division
The main object of this Division is to provide for the making of declarations (nominated broadcaster declarations) that allow the following licences to be held by different persons:
(a) an international broadcasting licence that authorises the provision of an international broadcasting service;
(b) a transmitter licence for a radiocommunications transmitter that is for use for transmitting the international broadcasting service.
121FLB Applications for nominated broadcaster declarations
If a person (the transmission provider): (a) is the licensee of a transmitter licence for a transmitter that is
used, or intended for use, for transmitting an international broadcasting service; or
(b) proposes to apply for a transmitter licence for a transmitter that is intended for use for transmitting an international broadcasting service;
the transmission provider may apply to the ACMA for a nominated broadcaster declaration in relation to the provision of the international broadcasting service by a particular person (the content provider).
121FLC Making a nominated broadcaster declaration
(1) After considering the application, the ACMA must declare in writing that the provision of the international broadcasting service by the content provider is nominated in relation to the transmitter licence or proposed transmitter licence, if the ACMA is satisfied that:
(a) either: (i) the content provider holds an international broadcasting
licence that authorises the provision of the international broadcasting service; or
International broadcasting licences Part 8B Nominated broadcaster declarations Division 4A
Section 121FLC
Broadcasting Services Act 1992 309
(ii) the content provider does not hold such a licence but, if the declaration were made, the transmission provider or another person will, within 60 days after the making of the declaration, apply under subsection 121FA(1A), on behalf of the content provider, for an international broadcasting licence that authorises the provision of the international broadcasting service by the content provider; and
(b) the transmission provider intends to transmit the international broadcasting service on behalf of the content provider; and
(c) the transmission provider is registered as a company under Part 2A.2 of the Corporations Act 2001; and
(d) if the declaration were made, the transmission provider would be in a position to comply with all of the obligations imposed on the transmission provider under section 121FLE.
(2) The ACMA must give a copy of the declaration to: (a) the transmission provider; and (b) the content provider.
(3) If the ACMA refuses to make a nominated broadcaster declaration, the ACMA must give written notice of the refusal to:
(a) the transmission provider; and (b) the content provider.
(4) If an application is made for a nominated broadcaster declaration, the ACMA must make reasonable efforts to:
(a) make the declaration under subsection (1); or (b) refuse to make the declaration;
within 30 days after the application is made.
(5) This Part does not prevent the ACMA from making more than one nominated broadcaster declaration in relation to a particular international broadcasting service, so long as each declaration relates to a different transmitter licence or proposed transmitter licence.
Part 8B International broadcasting licences Division 4A Nominated broadcaster declarations
Section 121FLD
310 Broadcasting Services Act 1992
121FLD Effect of nominated broadcaster declaration
If: (a) a nominated broadcaster declaration is in force in relation to
an international broadcasting service; and (b) the provision of the international broadcasting service is
authorised by an international broadcasting licence; and (c) the holder of the declaration is the licensee of a transmitter
licence that authorises the operation of a transmitter for transmitting the international broadcasting service; and
(d) the licensee of the transmitter licence transmits the international broadcasting service on behalf of the licensee of the international broadcasting licence;
then: (e) for the purposes of the Radiocommunications Act 1992, the
licensee of the international broadcasting licence is taken not to operate the radiocommunications transmitter for any purpose in connection with that transmission; and
(f) for the purposes of this Act: (i) the licensee of the international broadcasting licence is
taken to provide the international broadcasting service; and
(ii) the licensee of the transmitter licence is taken not to provide the international broadcasting service; and
(g) for the purposes of this Act, any programs that are transmitted by the licensee of the transmitter licence on behalf of the licensee of the international broadcasting licence:
(i) are taken to be programs transmitted by the licensee of the international broadcasting licence; and
(ii) are not taken to be programs transmitted by the licensee of the transmitter licence; and
(h) for the purposes of this Part (other than section 121FLG), the ACMA is taken to have given a written notice to the licensee of the international broadcasting licence if the ACMA gives the notice to the licensee of the transmitter licence.
International broadcasting licences Part 8B Nominated broadcaster declarations Division 4A
Section 121FLE
Broadcasting Services Act 1992 311
121FLE Conditions of nominated broadcaster declarations
(1) Each nominated broadcaster declaration is subject to the following conditions:
(a) the holder of the declaration must cause a record of programs broadcast on the international broadcasting service concerned to be made in a form approved in writing by the ACMA;
(b) the holder of the declaration must retain in the holder’s custody a record so made for a period of 90 days after the broadcast;
(c) the holder of the declaration must, without charge, make available to the ACMA, on request, any specified record made by the holder under paragraph (a) that has been retained by the holder (whether or not the holder is, at the time of the request, under an obligation to retain the record).
(2) Subsection (1) does not apply to a nominated broadcaster declaration unless the holder of the declaration is the licensee of a transmitter licence that authorises the operation of a transmitter for transmitting the international broadcasting service concerned.
121FLF Offence for breach of conditions of nominated broadcaster declaration
(1) A person is guilty of an offence if: (a) the person is the holder of a nominated broadcaster
declaration; and (b) the person engages in conduct; and (c) the person’s conduct breaches a condition of the declaration.
Penalty: 2,000 penalty units.
(2) In this section:
engage in conduct means: (a) do an act; or (b) omit to perform an act.
Part 8B International broadcasting licences Division 4A Nominated broadcaster declarations
Section 121FLG
312 Broadcasting Services Act 1992
121FLG Revocation of nominated broadcaster declaration
(1) The ACMA must, by writing, revoke a nominated broadcaster declaration relating to the provision of an international broadcasting service by a person (the content provider) if the ACMA is satisfied that:
(a) the holder of the declaration is neither transmitting, nor proposing to transmit, the international broadcasting service on behalf of the content provider; or
(b) the holder of the declaration is involved, or proposes to become involved, in the selection or provision of programs to be transmitted on the international broadcasting service; or
(c) the holder of the declaration is not registered as a company under Part 2A.2 of the Corporations Act 2001.
(2) The ACMA must, by writing, revoke a nominated broadcaster declaration relating to the provision of an international broadcasting service by a person (the content provider) if the ACMA is satisfied that:
(a) at the time the declaration was made, there was no international broadcasting licence that authorised the provision of the international broadcasting service by the content provider; and
(b) either: (i) no application was made under subsection 121FA(1A)
for such a licence within 60 days after the making of the declaration; or
(ii) an application for such a licence was made under subsection 121FA(1A) within 60 days after the making of the declaration, but the application was refused.
(3) The ACMA must, by writing, revoke a nominated broadcaster declaration relating to the provision of an international broadcasting service by a person (the content provider) if:
(a) the holder of the declaration; or (b) the content provider;
gives the ACMA a written notice stating that the holder of the declaration, or the content provider, does not consent to the continued operation of the declaration.
International broadcasting licences Part 8B Nominated broadcaster declarations Division 4A
Section 121FLH
Broadcasting Services Act 1992 313
(4) The ACMA must give a copy of the revocation to: (a) the person who held the declaration; and (b) the content provider.
(5) A revocation under subsection (1), (2) or (3) takes effect on the date specified in the revocation.
(6) The ACMA must not revoke a nominated broadcaster declaration under subsection (1) or (2) unless the ACMA has first:
(a) given the holder of the declaration a written notice: (i) setting out a proposal to revoke the declaration; and
(ii) inviting the holder of the declaration to make a submission to the ACMA on the proposal; and
(b) given the content provider a written notice: (i) setting out a proposal to revoke the declaration; and
(ii) inviting the content provider to make a submission to the ACMA on the proposal; and
(c) considered any submission that was received under paragraph (a) or (b) within the time limit specified in the notice concerned.
(7) A time limit specified in a notice under subsection (6) must run for at least 7 days.
(8) A person must not enter into a contract or arrangement under which the person or another person is:
(a) prevented from giving a notice under subsection (3); or (b) subject to any restriction in relation to the giving of a notice
under subsection (3).
(9) A contract or arrangement entered into in contravention of subsection (8) is void.
121FLH Cancellation of licence if declaration ceases to be in force and licensee is not an Australian company
(1) If: (a) a nominated broadcaster declaration ceases to be in force;
and
Part 8B International broadcasting licences Division 4A Nominated broadcaster declarations
Section 121FLH
314 Broadcasting Services Act 1992
(b) the provision of the international broadcasting service concerned is authorised by an international broadcasting licence; and
(c) 30 days pass, and the ACMA is satisfied that: (i) the international broadcasting licensee is not registered
as a company under Part 2A.2 of the Corporations Act 2001; and
(ii) the international broadcasting licensee has not taken reasonable steps to arrange for the international broadcasting service to be provided by a company that is registered under Part 2A.2 of the Corporations Act 2001;
the ACMA must cancel the licence.
(2) If: (a) a nominated broadcaster declaration ceases to be in force;
and (b) the provision of the international broadcasting service
concerned is authorised by an international broadcasting licence; and
(c) 90 days pass, and the ACMA is satisfied that the international broadcasting licensee is not registered as a company under Part 2A.2 of the Corporations Act 2001;
the ACMA must cancel the licence.
(3) The ACMA may, by written notice given to the licensee, determine that paragraph (2)(c) has effect, in relation to the licensee, as if a reference in that paragraph to 90 days were a reference to such greater number of days as is specified in the notice.
(4) The ACMA must not notify a greater number of days under subsection (3) unless it is satisfied that there are exceptional circumstances that warrant the greater number of days.
Notice of intention to cancel
(5) If the ACMA proposes to cancel a licence under subsection (1) or (2), the ACMA must give to the licensee:
(a) written notice of its intention; and
International broadcasting licences Part 8B Nominated broadcaster declarations Division 4A
Section 121FLJ
Broadcasting Services Act 1992 315
(b) a reasonable opportunity to make representations to the ACMA in relation to the proposed cancellation.
121FLJ Register of nominated broadcaster declarations
(1) The ACMA is to maintain a register in which the ACMA includes particulars of all nominated broadcaster declarations currently in force.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
Part 8B International broadcasting licences Division 5 ACMA to assist the Minister for Foreign Affairs
Section 121FM
316 Broadcasting Services Act 1992
Division 5—ACMA to assist the Minister for Foreign Affairs
121FM Report about compliance with international broadcasting guidelines
The Minister for Foreign Affairs may, by written notice given to the ACMA, direct the ACMA to:
(a) prepare a report about whether a specified international broadcasting service complies with the international broadcasting guidelines; and
(b) give the report to the Minister for Foreign Affairs.
121FN Records of broadcasts
The Minister for Foreign Affairs may, by written notice given to the ACMA, direct the ACMA to:
(a) obtain specified records from an international broadcasting licensee under section 121FF; and
(b) give the records to the Minister for Foreign Affairs.
International broadcasting licences Part 8B Miscellaneous Division 6
Section 121FP
Broadcasting Services Act 1992 317
Division 6—Miscellaneous
121FP International broadcasting guidelines
(1) The ACMA must formulate written guidelines relating to international broadcasting services.
(2) To avoid doubt, international broadcasting guidelines may deal with matters other than Australia’s national interest.
(3) International broadcasting guidelines are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.
121FQ Surrender of international broadcasting licences
(1) An international broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence.
121FR Complaints about international broadcasting services
(1) It is not a function of the ACMA to monitor and investigate complaints concerning international broadcasting services.
(2) However, if an international broadcasting service also falls into another category of broadcasting services, this section does not prevent the ACMA from performing its function of monitoring and investigating complaints about the service in the service’s capacity as a service that falls into that other category.
121FS Statements about decisions of the Minister for Foreign Affairs
(1) If: (a) the Minister for Foreign Affairs makes a decision under
subsection 121FD(1) or 121FL(3) or (5); and (b) a person is entitled to make an application to the Federal
Court or the Federal Circuit Court under section 5 of the Administrative Decisions (Judicial Review) Act 1977 in relation to the decision;
Part 8B International broadcasting licences Division 6 Miscellaneous
Section 121FS
318 Broadcasting Services Act 1992
the person may, by written notice given to the Minister for Foreign Affairs, request the Minister for Foreign Affairs to give the person a written statement setting out the reasons for the decision.
(2) If a person makes a request under subsection (1) in relation to a decision, the Minister for Foreign Affairs must either:
(a) as soon as practicable, and in any event within 28 days, after receiving the request:
(i) prepare a written statement setting out the reasons for the decision; and
(ii) give the statement to the person; or (b) both:
(i) as soon as practicable, and in any event within 28 days, after receiving the request, prepare a statement about the decision; and
(ii) cause a copy of the statement to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the statement.
Content rules, program standards and codes of practice Part 9
Section 121G
Broadcasting Services Act 1992 319
Part 9—Content rules, program standards and codes of practice
121G Australian content—transmission quota
Programs transmitted on core/primary commercial television broadcasting service
(1) A commercial television broadcasting licensee must ensure that, for:
(a) the calendar year that began on 1 January 2013; and (b) each later calendar year;
the percentage worked out using the following formula is not less than 55%:
where:
total hours of Australian programs transmitted during the year means the total number of hours of Australian programs that were transmitted:
(a) during targeted viewing hours in the year; and (b) on the core/primary commercial television broadcasting
service provided by the licensee.
total hours of programs transmitted during the year means the total number of hours of television programs transmitted:
(a) during targeted viewing hours in the year; and (b) on the core/primary commercial television broadcasting
service provided by the licensee.
Total hours of Australian programs
transmitted during the year 100
Total hours of programs transmitted
during the year
×
Part 9 Content rules, program standards and codes of practice
Section 121G
320 Broadcasting Services Act 1992
Programs transmitted otherwise than on core/primary commercial television broadcasting service
(2) A commercial television broadcasting licensee must ensure that: (a) for the calendar year that began on 1 January 2013, the total
number of hours of Australian programs that were transmitted by the licensee:
(i) during targeted viewing hours in the year; and (ii) otherwise than on the core/primary commercial
television broadcasting service provided by the licensee; is not less than 730; and
(b) for the calendar year beginning on 1 January 2014, the total number of hours of Australian programs that were transmitted:
(i) during targeted viewing hours in the year; and (ii) otherwise than on the core/primary commercial
television broadcasting service provided by the licensee; is not less than 1,095; and
(c) for each calendar year beginning on or after 1 January 2015, the total number of hours of Australian programs that were transmitted:
(i) during targeted viewing hours in the year; and (ii) otherwise than on the core/primary commercial
television broadcasting service provided by the licensee; is not less than 1,460.
(3) For the purposes of the application of subsection (2) to a commercial television broadcasting licensee, if a first release Australian drama program was transmitted by the licensee:
(a) during targeted viewing hours in a calendar year; and (b) otherwise than on the core/primary commercial television
broadcasting service provided by the licensee; assume that the duration of the program was twice as long as the actual duration of the program.
Content rules, program standards and codes of practice Part 9
Section 121G
Broadcasting Services Act 1992 321
Targeted viewing hours
(4) For the purposes of this section, targeted viewing hours are the hours:
(a) beginning at 6 am each day; and (b) ending at midnight on the same day.
(5) For the purposes of this section, if: (a) a television program consists of coverage of a sporting event;
and (b) the program:
(i) begins before midnight on a particular day (the first day); and
(ii) ends on the next day; the part of the program transmitted between midnight on the first day and 2 am on the next day is taken to have been transmitted during targeted viewing hours on the first day.
Australian programs
(6) For the purposes of this section, Australian program means: (a) if an instrument is in force under subsection (7)—an
Australian program as defined by that instrument; or (b) otherwise:
(i) an Australian program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013); or
(ii) an Australian official co-production (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013); or
(iii) a New Zealand program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013); or
(iv) an Australian/New Zealand program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013).
(7) The ACMA may, by legislative instrument, define the meaning of the expression Australian program for the purposes of this section.
Part 9 Content rules, program standards and codes of practice
Section 121G
322 Broadcasting Services Act 1992
Note: See also section 16 of the Australian Communications and Media Authority Act 2005 (consistency with CER Trade in Services Protocol).
First release Australian drama program
(8) For the purposes of this section, first release means: (a) if an instrument is in force under subsection (9)—first release
as defined by that instrument; or (b) otherwise—first release (within the meaning of the
Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013).
(9) The ACMA may, by legislative instrument, define the meaning of the expression first release for the purposes of this section. Note: See also section 16 of the Australian Communications and Media
Authority Act 2005 (consistency with CER Trade in Services Protocol).
(10) For the purposes of this section, Australian drama program means:
(a) if an instrument is in force under subsection (12)—an Australian drama program as defined by that instrument; or
(b) otherwise: (i) an Australian drama program (within the meaning of the
Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013); or
(ii) an Australian official co-production (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013) that is a drama program; or
(iii) a New Zealand program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013) that is a drama program; or
(iv) an Australian/New Zealand program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013) that is a drama program.
Content rules, program standards and codes of practice Part 9
Section 122
Broadcasting Services Act 1992 323
(11) For the purposes of subparagraphs (10)(b)(ii), (iii) and (iv), drama program means a program that would be an Australian drama program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005 as in force on 1 January 2013) if the expression “Australian” were omitted from paragraphs (a) and (c) of the definition of Australian drama program in that standard as in force on 1 January 2013.
(12) The ACMA may, by legislative instrument, define the meaning of the expression Australian drama program for the purposes of this section. Note: See also section 16 of the Australian Communications and Media
Authority Act 2005 (consistency with CER Trade in Services Protocol).
Licence allocated under subsection 40(1) on or after 1 January 2007
(13) If a commercial television broadcasting licence is or was allocated under subsection 40(1) on or after 1 January 2007, subsections (1) and (2) of this section do not apply to the licensee for:
(a) the calendar year in which the licence is or was allocated; and (b) any of the next 4 calendar years.
Ministerial direction
(14) The Minister may, by legislative instrument, give directions to the ACMA in relation to the exercise of its powers under this section. Note: Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
Instruments Act 2003 do not apply to the direction (see sections 44 and 54 of that Act).
(15) The ACMA must comply with a direction under subsection (14).
122 Program standards for children’s programs and Australian content
(1) The ACMA must, by legislative instrument, determine standards that are to be observed by commercial television broadcasting licensees.
Part 9 Content rules, program standards and codes of practice
Section 122
324 Broadcasting Services Act 1992
Note: See also section 16 of the Australian Communications and Media Authority Act 2005 (consistency with CER Trade in Services Protocol).
(2) Standards under subsection (1) for commercial television broadcasting licensees are to relate to:
(a) programs for children; and (b) the Australian content of programs.
(4) Standards must not be inconsistent with this Act or the regulations.
(6) The ACMA must ensure that, at all times after the commencement of this subsection, there is in force under subsection (1) a standard that is, or has the same effect as, the standard in section 5 of Television Program Standard 23—Australian Content in Advertising as in force on 4 August 2004. Note: Section 5 of Television Program Standard 23—Australian Content in
Advertising deals with quotas for Australian television advertisements.
(7) The Minister may, by legislative instrument, give directions to the ACMA in relation to the exercise of its powers under this section. Note: Section 42 (disallowance) and Part 6 (sunsetting) of the Legislative
Instruments Act 2003 do not apply to the direction (see sections 44 and 54 of that Act).
(8) The ACMA must comply with a direction under subsection (7).
(9) The ACMA must not determine a standard under subsection (1) that has the effect of quantitatively extending the requirements imposed by subsection 121G(1) or (2).
(10) If: (a) a standard under subsection (1) imposes a quantitative
requirement in relation to a particular kind of program transmitted by a commercial television broadcasting licensee; and
(b) the requirement does not substantially correspond to subsection 121G(1) or (2); and
(c) a program of that kind is transmitted on a commercial television broadcasting service provided by the licensee;
Content rules, program standards and codes of practice Part 9
Section 123
Broadcasting Services Act 1992 325
the transmission of the program counts for the purposes of meeting the requirement. Note: The following are examples of a kind of program:
(a) an Australian drama program (within the meaning of the Broadcasting Services (Australian Content) Standard 2005);
(b) a C program (within the meaning of the Children’s Television Standards 2009);
(c) a P program (within the meaning of the Children’s Television Standards 2009).
(11) If a commercial television broadcasting licence is or was allocated under subsection 40(1) on or after 1 January 2007, standards under subsection (1) of this section do not apply to the licensee during:
(a) the calendar year in which the licence is or was allocated; and (b) any of the next 4 calendar years.
(12) For the purposes of this section, in determining whether a requirement substantially corresponds to subsection 121G(1) or (2), disregard any differences as to:
(a) percentage; or (b) viewing hours.
123 Development of codes of practice
(1) It is the intention of the Parliament that radio and television industry groups representing:
(a) commercial broadcasting licensees; and (b) community broadcasting licensees other than providers of
services targeted, to a significant extent, to one or more remote Indigenous communities; and
(ba) community broadcasting licensees whose services are targeted, to a significant extent, to one or more remote Indigenous communities; and
(c) providers of subscription broadcasting services; and (d) providers of subscription narrowcasting services; and (e) providers of open narrowcasting services;
develop, in consultation with the ACMA and taking account of any relevant research conducted by the ACMA, codes of practice that
Part 9 Content rules, program standards and codes of practice
Section 123
326 Broadcasting Services Act 1992
are to be applicable to the broadcasting operations of each of those sections of the industry.
(2) Codes of practice developed for a section of the broadcasting industry may relate to:
(a) preventing the broadcasting of programs that, in accordance with community standards, are not suitable to be broadcast by that section of the industry; and
(b) methods of ensuring that the protection of children from exposure to program material which may be harmful to them is a high priority; and
(c) methods of classifying programs that reflect community standards; and
(d) promoting accuracy and fairness in news and current affairs programs; and
(e) preventing the broadcasting of programs that: (i) simulate news or events in a way that misleads or
alarms the audience; or (ii) depict the actual process of putting a person into a
hypnotic state; or (iii) are designed to induce a hypnotic state in the audience;
or (iv) use or involve the process known as subliminal
perception or any other technique that attempts to convey information to the audience by broadcasting messages below or near the threshold of normal awareness; and
(f) in the case of codes of practice developed by commercial broadcasting licensees—broadcasting time devoted to advertising; and
(g) in the case of codes of practice developed by commercial radio broadcasting licensees—the broadcasting of Australian music; and
(h) methods of: (i) handling complaints from the public about program
content or compliance with codes of practice; and (ii) reporting to the ACMA on complaints so made; and
(i) captioning of programs for the hearing impaired; and
Content rules, program standards and codes of practice Part 9
Section 123
Broadcasting Services Act 1992 327
(j) in the case of codes of practice developed by community broadcasting licensees:
(i) the kinds of sponsorship announcements that may be broadcast by those licensees; or
(ii) the kinds of sponsorship announcements that particular kinds of program may carry; and
(k) in the case of codes of practice developed by subscription broadcasting licensees—dealings with customers of the licensees, including methods of billing, fault repair, privacy and credit management;
(l) such other matters relating to program content as are of concern to the community.
(3) In developing codes of practice relating to matters referred to in paragraphs (2)(a) and (c), community attitudes to the following matters are to be taken into account:
(a) the portrayal in programs of physical and psychological violence;
(b) the portrayal in programs of sexual conduct and nudity; (c) the use in programs of offensive language; (d) the portrayal in programs of the use of drugs, including
alcohol and tobacco; (e) the portrayal in programs of matter that is likely to incite or
perpetuate hatred against, or vilifies, any person or group on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability;
(f) such other matters relating to program content as are of concern to the community.
(3A) In developing codes of practice referred to in paragraph (2)(a), (b) or (c), industry groups representing commercial television broadcasting licensees and community television broadcasting licensees must ensure that:
(a) for the purpose of classifying films—those codes apply the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995; and
(b) those codes provide for methods of modifying films having particular classifications under that system so that:
Part 9 Content rules, program standards and codes of practice
Section 123
328 Broadcasting Services Act 1992
(i) the films are suitable to be broadcast; or (ii) the films are suitable to be broadcast at particular times;
and (c) those codes require that films classified as “M” may be
broadcast only: (i) between the hours of 8:30 pm on a day and 5 am on the
following day; or (ii) between the hours of noon and 3 pm on any day that is a
school day; and (d) films classified as “MA 15+” may be broadcast only between
the hours of 9 pm on a day and 5 am on the following day; and
(e) those codes provide for the provision of advice to consumers on the reasons for films receiving a particular classification.
(3B) In developing codes of practice referred to in paragraph (2)(a), (b), or (c), industry groups representing commercial television broadcasting licensees and community television broadcasting licensees must ensure that films classified as “M” or “MA 15+” do not portray material that goes beyond the previous “AO” classification criteria.
(3C) In developing codes of practice referred to in paragraph (2)(a), (b) or (c), industry groups representing providers of open narrowcasting television services must ensure that:
(a) for the purpose of classifying films—those codes apply the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995; and
(b) those codes provide for methods of modifying films having particular classifications under that system so that:
(i) the films are suitable to be broadcast; or (ii) the films are suitable to be broadcast at particular times;
and (c) those codes require that films classified as “M” may be
broadcast only: (i) between the hours of 8.30 pm on a day and 5 am on the
following day; or
Content rules, program standards and codes of practice Part 9
Section 123
Broadcasting Services Act 1992 329
(ii) between the hours of noon and 3 pm on any day that is a school day; and
(d) films classified as “MA 15+” may be broadcast only between the hours of 9 pm on a day and 5 am on the following day; and
(e) those codes provide for the provision of advice to consumers on the reasons for films receiving a particular classification.
(3D) In developing codes of practice referred to in paragraph (2)(a), (b) or (c), industry groups representing providers of open narrowcasting television services must ensure that films classified as “M” or “MA 15+” do not portray material that goes beyond the previous “AO” classification criteria.
(3E) A code of practice referred to in paragraph (2)(i) has no effect to the extent to which it is inconsistent with a standard determined under subsection 130ZZA(1).
(4) If: (a) a group representing a particular section of the broadcasting
industry develops a code of practice to be observed in the conduct of the broadcasting operations of that section of the industry; and
(b) the ACMA is satisfied that: (i) the code of practice provides appropriate community
safeguards for the matters covered by the code; and (ii) the code is endorsed by a majority of the providers of
broadcasting services in that section of the industry; and (iii) members of the public have been given an adequate
opportunity to comment on the code; the ACMA must include that code in the Register of codes of practice.
(5) To avoid doubt, a reference in this section to broadcasting operations includes a reference to each commercial television broadcasting service provided by a commercial television broadcasting licensee.
(6) To avoid doubt, a reference in this section to broadcasting operations includes a reference to each commercial radio
Part 9 Content rules, program standards and codes of practice
Section 123A
330 Broadcasting Services Act 1992
broadcasting service provided by a commercial radio broadcasting licensee.
(7) To avoid doubt, a reference in this section to broadcasting operations includes a reference to each community radio broadcasting service provided by a designated community radio broadcasting licensee.
123A Review by the ACMA
(1) The ACMA must periodically conduct a review of the operation of subsections 123(3A) and (3C) to see whether those subsections are in accordance with prevailing community standards.
(2) If, after conducting such a review, the ACMA concludes that subsection 123(3A) or (3C) is not in accordance with prevailing community standards, the ACMA must recommend to the Minister appropriate amendments to this Act that would ensure that subsection 123(3A) or (3C), as the case requires, is in accordance with prevailing community standards.
(3) If the Minister receives a recommendation under subsection (2), the Minister must cause a copy of the recommendation to be tabled in each House of the Parliament within 15 sitting days of that House after receiving the recommendation.
123B Review by the ACMA—application of code of practice to section 38C licences
Scope
(1) This section applies if: (a) a code of practice (the original code) is registered under
section 123; and (b) the code applies to the broadcasting operations of
commercial television broadcasting licensees.
Review of original code
(2) The ACMA may conduct a review of whether the original code is appropriate in its application to the broadcasting operations of
Content rules, program standards and codes of practice Part 9
Section 124
Broadcasting Services Act 1992 331
licensees of commercial television broadcasting licences allocated under section 38C.
Request for development of replacement code
(3) If the ACMA: (a) conducts a review of the original code under subsection (2);
and (b) considers that the original code is not appropriate in its
application to the broadcasting operations of licensees of commercial television broadcasting licences allocated under section 38C;
the ACMA may, by written notice given to the industry group that developed the original code:
(c) request the industry group to: (i) develop another code of practice (the replacement code)
that is expressed to replace the original code; and (ii) give a copy of the replacement code to the ACMA
within the period specified in the notice; and (d) specify particular matters that, in the ACMA’s opinion,
should be addressed in the replacement code.
124 ACMA to maintain Register of codes of practice
(1) The ACMA is to maintain a Register in which it includes all codes of practice registered under section 123.
(2) The Register is to be open for public inspection.
(3) The Register may be maintained by electronic means.
125 ACMA may determine program standards where codes of practice fail or where no code of practice developed
(1) If: (a) the ACMA is satisfied that there is convincing evidence that
a code of practice registered under section 123 is not operating to provide appropriate community safeguards for a matter referred to in subsection 123(2) in a particular section of the broadcasting industry; and
Part 9 Content rules, program standards and codes of practice
Section 126
332 Broadcasting Services Act 1992
(b) the ACMA is satisfied that it should determine a standard in relation to that matter;
the ACMA must, in writing, determine a standard in relation to that matter.
(2) If: (a) no code of practice has been registered under section 123 for
a matter referred to in subsection 123(2) in a particular section of the broadcasting industry; and
(b) the ACMA is satisfied that it should determine a standard in relation to that matter;
the ACMA must, by notice in writing, determine a standard in relation to that matter.
126 Consultation on standards
The ACMA must, before determining, varying or revoking a standard, seek public comment on the proposed standard or the variation or revocation.
127 Notification of determination or variation or revocation of standards
If the ACMA determines or varies or revokes a standard, the ACMA must publish in the Gazette a notice stating:
(a) that the standard has been determined, varied or revoked; and (b) the places where copies of the standard or of the variation or
revocation can be purchased.
128 Standards and codes to be amendable by the Parliament
(1) If: (a) either House of the Parliament agrees to an amendment of a
standard or code of practice which has been determined or registered in accordance with this Part; and
(b) otherwise than as mentioned in subsection (2), the other House agrees to that amendment of the standard or code of practice;
Content rules, program standards and codes of practice Part 9
Section 129
Broadcasting Services Act 1992 333
the standard or code of practice has effect as amended by that amendment from the 28th day after the day on which that other House agrees to the amendment.
(2) If notice of a motion for an amendment to a standard or code of practice is given in a House, and within 15 sitting days of that House after the notice has been given:
(a) the notice has not been withdrawn and the motion has not been called on; or
(b) the motion has been called on and moved and has not been withdrawn or otherwise disposed of;
the amendment specified in the motion shall then be taken to have been agreed to by that House.
129 Limitation of ACMA’s power in relation to standards
(1) Subject to subsection (2), the ACMA must not determine a standard that requires that, before programs are broadcast, the programs, or a sample of the programs, be approved by the ACMA or by a person or body appointed by the ACMA.
(2) The ACMA may determine such a standard in relation to programs for children.
130 Application of the Competition and Consumer Act
Nothing in this Part is to be taken as specifically authorising any act or thing for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
Part 9A Technical standards
Section 130A
334 Broadcasting Services Act 1992
Part 9A—Technical standards
130A Technical standards for digital transmission—television etc.
(1) The ACMA may, by legislative instrument, determine technical standards that relate to the transmission in digital mode of any or all of the following services delivered using the broadcasting services bands:
(a) commercial television broadcasting services; (b) national television broadcasting services; (c) community television broadcasting services; (d) subscription television broadcasting services; (e) subscription television narrowcasting services provided
under a class licence; (ea) open narrowcasting television services provided under a class
licence; (f) datacasting services (other than restricted datacasting
services) provided under datacasting licences.
Conditional access systems
(2) Standards under subsection (1), to the extent that they deal with conditional access systems, must be directed towards ensuring the achievement of the policy objective that, as far as is practicable, those systems should be open to all providers of eligible datacasting services.
Application program interfaces
(3) Standards under subsection (1), to the extent that they deal with application program interfaces, must be directed towards ensuring the achievement of the policy objective that, as far as is practicable, those interfaces should be open to all providers of eligible datacasting services.
Technical standards Part 9A
Section 130A
Broadcasting Services Act 1992 335
Conversion schemes
(4) The commercial television conversion scheme under clause 6 of Schedule 4 must be consistent with any standards determined under subsection (1).
(5) The national television conversion scheme under clause 19 of Schedule 4 must be consistent with any standards determined under subsection (1).
Instruments
(6) Section 589 of the Telecommunications Act 1997 applies to standards determined under subsection (1) of this section in a corresponding way to the way in which it applies to an instrument under that Act.
Compliance
(7) A national broadcaster must comply with a standard determined under subsection (1). Note 1: For compliance by holders of commercial television broadcasting
licences, see clause 7 of Schedule 2.
Note 2: For compliance by holders of community television broadcasting licences, see clause 9 of Schedule 2.
Note 3: For compliance by holders of subscription television broadcasting licences, see clause 10 of Schedule 2.
Note 4: For compliance by providers of television broadcasting services provided under a class licence, see clause 11 of Schedule 2.
Note 5: For compliance by holders of datacasting licences, see clause 24 of Schedule 6.
Note 6: For compliance by holders of datacasting transmitter licences, see section 109A of the Radiocommunications Act 1992.
Definitions
(8) In this section:
application program interface has the meaning generally accepted within the broadcasting industry.
Part 9A Technical standards
Section 130AA
336 Broadcasting Services Act 1992
conditional access system means a conditional access system that: (a) relates to the provision of one or more eligible datacasting
services; and (b) allows a provider of an eligible datacasting service to
determine whether an end-user is able to receive a particular eligible datacasting service.
digital mode has the same meaning as in Schedule 4.
eligible datacasting service means: (a) a datacasting service provided under, and in accordance with
the conditions of, a datacasting licence; or (b) a television broadcasting service transmitted in digital mode
using the broadcasting services bands.
national television broadcasting service has the same meaning as in Schedule 4.
130AA Technical standards for digital transmission—radio etc.
(1) The ACMA may, by legislative instrument, determine technical standards that relate to the transmission of any or all of the following services using a digital modulation technique:
(a) commercial radio broadcasting services; (b) national radio broadcasting services; (c) community radio broadcasting services; (d) subscription radio broadcasting services provided under a
class licence; (e) subscription radio narrowcasting services provided under a
class licence; (f) open narrowcasting radio services provided under a class
licence; (g) restricted datacasting services provided under restricted
datacasting licences.
Instruments
(2) Section 589 of the Telecommunications Act 1997 applies to standards determined under subsection (1) of this section in a
Technical standards Part 9A
Section 130AB
Broadcasting Services Act 1992 337
corresponding way to the way in which it applies to an instrument under that Act.
Compliance
(3) A national broadcaster must comply with a standard determined under subsection (1). Note 1: For compliance by holders of commercial radio broadcasting licences,
see clause 8 of Schedule 2.
Note 2: For compliance by holders of community radio broadcasting licences, see clause 9 of Schedule 2.
Note 3: For compliance by providers of radio broadcasting services provided under a class licence, see clause 11 of Schedule 2.
Note 4: For compliance by holders of restricted datacasting licences, see clause 24A of Schedule 6.
130AB Technical standards relating to the operation of multiplex transmitters
(1) The ACMA may, by legislative instrument, determine technical standards that relate to the operation of multiplex transmitters under digital radio multiplex transmitter licences. Note: For compliance, see paragraph 109B(1)(o) of the
Radiocommunications Act 1992.
Instruments
(2) Section 589 of the Telecommunications Act 1997 applies to standards determined under subsection (1) of this section in a corresponding way to the way in which it applies to an instrument under that Act.
130AC Technical standards for digital transmission of television services provided with the use of a satellite
(1) The ACMA may, by legislative instrument, determine technical standards that relate to the transmission in digital mode of either or both of the following services:
(a) commercial television broadcasting services provided under a licence allocated under section 38C;
Part 9A Technical standards
Section 130B
338 Broadcasting Services Act 1992
(b) national television broadcasting services provided with the use of a satellite.
Instruments
(2) Section 589 of the Telecommunications Act 1997 applies to standards determined under subsection (1) of this section in a corresponding way to the way in which it applies to an instrument under that Act.
Compliance
(3) A national broadcaster must comply with a standard determined under subsection (1). Note: For compliance by holders of commercial television broadcasting
licences, see paragraph 7A(1)(d) of Schedule 2.
Definitions
(4) In this section:
digital mode has the same meaning as in Schedule 4.
national television broadcasting service has the same meaning as in Schedule 4.
130B Technical standards for domestic digital reception equipment—television etc.
(1) The ACMA may, by legislative instrument, determine technical standards that relate to domestic reception equipment that is capable of receiving any or all of the following services transmitted in digital mode using the broadcasting services bands:
(a) commercial television broadcasting services; (b) national television broadcasting services; (c) community television broadcasting services; (d) subscription television broadcasting services; (e) television broadcasting services provided under a class
licence; (f) datacasting services provided under datacasting licences.
Technical standards Part 9A
Section 130B
Broadcasting Services Act 1992 339
Offence
(2) A person commits an offence if: (a) the person supplies equipment; and (b) the equipment is domestic reception equipment; and (c) the equipment is capable of receiving any or all of the
following services transmitted in digital mode using the broadcasting services bands:
(i) commercial television broadcasting services; (ii) national television broadcasting services;
(iii) community television broadcasting services; (iv) subscription television broadcasting services; (v) television broadcasting services provided under a class
licence; (vi) datacasting services provided under datacasting
licences; and (d) the equipment does not comply with a standard determined
under subsection (1).
Penalty: 1,500 penalty units.
Civil penalty
(3) A person must not supply domestic reception equipment if: (a) the equipment is capable of receiving any or all of the
following services transmitted in digital mode using the broadcasting services bands:
(i) commercial television broadcasting services; (ii) national television broadcasting services;
(iii) community television broadcasting services; (iv) subscription television broadcasting services; (v) television broadcasting services provided under a class
licence; (vi) datacasting services provided under datacasting
licences; and (b) the equipment does not comply with a standard determined
under subsection (1).
Part 9A Technical standards
Section 130BA
340 Broadcasting Services Act 1992
(4) Subsection (3) is a civil penalty provision.
Instruments
(5) Section 589 of the Telecommunications Act 1997 applies to standards determined under subsection (1) of this section in a corresponding way to the way in which it applies to an instrument under that Act.
Reception of subscription television broadcasting services
(6) For the purposes of this section, it is immaterial whether domestic reception equipment is capable of receiving subscription television broadcasting services when used:
(a) in isolation; or (b) in conjunction with any other equipment.
Exemptions
(7) The ACMA may, by legislative instrument, exempt specified domestic reception equipment from subsections (2) and (3). Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
Definitions
(8) In this section:
digital mode has the same meaning as in Schedule 4.
national television broadcasting service has the same meaning as in Schedule 4.
supply has the same meaning as in the Competition and Consumer Act 2010.
130BA Technical standards for domestic digital reception equipment—radio etc.
(1) The ACMA may, by legislative instrument, determine technical standards that relate to domestic reception equipment that is
Technical standards Part 9A
Section 130BA
Broadcasting Services Act 1992 341
capable of receiving any or all of the following services transmitted using a digital modulation technique:
(a) commercial radio broadcasting services; (b) national radio broadcasting services; (c) community radio broadcasting services; (d) subscription radio broadcasting services provided under a
class licence; (e) subscription radio narrowcasting services provided under a
class licence; (f) open narrowcasting radio services provided under a class
licence; (g) restricted datacasting services provided under restricted
datacasting licences.
Offence
(2) A person commits an offence if: (a) the person supplies equipment; and (b) the equipment is domestic reception equipment; and (c) the equipment is capable of receiving any or all of the
following services transmitted using a digital modulation technique:
(i) commercial radio broadcasting services; (ii) national radio broadcasting services;
(iii) community radio broadcasting services; (iv) subscription radio broadcasting services provided under
a class licence; (v) subscription radio narrowcasting services provided
under a class licence; (vi) open narrowcasting radio services provided under a
class licence; (vii) restricted datacasting services provided under restricted
datacasting licences; and (d) the equipment does not comply with a standard determined
under subsection (1).
Penalty: 1,500 penalty units.
Part 9A Technical standards
Section 130BA
342 Broadcasting Services Act 1992
Civil penalty
(3) A person must not supply domestic reception equipment if: (a) the equipment is capable of receiving any or all of the
following services transmitted using a digital modulation technique:
(i) commercial radio broadcasting services; (ii) national radio broadcasting services;
(iii) community radio broadcasting services; (iv) subscription radio broadcasting services provided under
a class licence; (v) subscription radio narrowcasting services provided
under a class licence; (vi) open narrowcasting radio services provided under a
class licence; (vii) restricted datacasting services provided under restricted
datacasting licences; and (b) the equipment does not comply with a standard determined
under subsection (1).
(4) Subsection (3) is a civil penalty provision.
Instruments
(5) Section 589 of the Telecommunications Act 1997 applies to standards determined under subsection (1) of this section in a corresponding way to the way in which it applies to an instrument under that Act.
Reception of subscription radio broadcasting services
(6) For the purposes of this section, it is immaterial whether domestic reception equipment is capable of receiving subscription radio broadcasting services when used:
(a) in isolation; or (b) in conjunction with any other equipment.
Technical standards Part 9A
Section 130BB
Broadcasting Services Act 1992 343
Exemptions
(7) The ACMA may, by legislative instrument, exempt specified domestic reception equipment from subsections (2) and (3). Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
Definition
(8) In this section:
supply has the same meaning as in the Competition and Consumer Act 2010.
130BB Technical standards for domestic digital reception equipment—television services provided with the use of a satellite
(1) The ACMA may, by legislative instrument, determine technical standards that relate to domestic reception equipment that is capable of receiving any or all of the following services transmitted in digital mode:
(a) commercial television broadcasting services provided under a licence allocated under section 38C;
(b) national television broadcasting services provided with the use of a satellite;
(c) community television broadcasting services provided with the use of a satellite;
(d) open narrowcasting television services provided with the use of a satellite.
Offence
(2) A person commits an offence if: (a) the person supplies equipment; and (b) the equipment is domestic reception equipment; and (c) the equipment is capable of receiving any or all of the
following services transmitted in digital mode: (i) commercial television broadcasting services provided
under a licence allocated under section 38C;
Part 9A Technical standards
Section 130BB
344 Broadcasting Services Act 1992
(ii) national television broadcasting services provided with the use of a satellite;
(iii) community television broadcasting services provided with the use of a satellite;
(iv) open narrowcasting television services provided with the use of a satellite; and
(d) the equipment does not comply with a standard determined under subsection (1).
Penalty: 1,500 penalty units.
Civil penalty
(3) A person must not supply domestic reception equipment if: (a) the equipment is capable of receiving any or all of the
following services transmitted in digital mode: (i) commercial television broadcasting services provided
under a licence allocated under section 38C; (ii) national television broadcasting services provided with
the use of a satellite; (iii) community television broadcasting services provided
with the use of a satellite; (iv) open narrowcasting television services provided with
the use of a satellite; and (b) the equipment does not comply with a standard determined
under subsection (1).
(4) Subsection (3) is a civil penalty provision.
Instruments
(5) Section 589 of the Telecommunications Act 1997 applies to standards determined under subsection (1) of this section in a corresponding way to the way in which it applies to an instrument under that Act.
Technical standards Part 9A
Section 130BB
Broadcasting Services Act 1992 345
Reception of television services provided with the use of a satellite
(6) For the purposes of this section, it is immaterial whether domestic reception equipment is capable of receiving any or all of the following transmitted in digital mode:
(a) commercial television broadcasting services provided under a licence allocated under section 38C;
(b) national television broadcasting services provided with the use of a satellite;
(ba) community television broadcasting services provided with the use of a satellite;
(bb) open narrowcasting television services provided with the use of a satellite;
when used: (c) in isolation; or (d) in conjunction with any other equipment.
Ministerial direction
(6A) The Minister may, by legislative instrument, direct the ACMA about the exercise of its powers to:
(a) determine technical standards under subsection (1); or (b) vary technical standards determined under subsection (1).
(6B) The ACMA must comply with a direction under subsection (6A).
Exemptions
(7) The ACMA may, by legislative instrument, exempt specified domestic reception equipment from subsections (2) and (3). Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
Definitions
(8) In this section:
community television broadcasting service means a community broadcasting service that provides television programs.
Part 9A Technical standards
Section 130BB
346 Broadcasting Services Act 1992
digital mode has the same meaning as in Schedule 4.
national television broadcasting service has the same meaning as in Schedule 4.
supply has the same meaning as in the Competition and Consumer Act 2010.
Industry codes and industry standards Part 9B Simplified outline Division 1
Section 130C
Broadcasting Services Act 1992 347
Part 9B—Industry codes and industry standards
Division 1—Simplified outline
130C Simplified outline
The following is a simplified outline of this Part:
• Industry codes may be registered by the ACMA.
• The ACMA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.
• Compliance with industry standards is mandatory.
Part 9B Industry codes and industry standards Division 2 Interpretation
Section 130D
348 Broadcasting Services Act 1992
Division 2—Interpretation
130D Industry codes
For the purposes of this Part, an industry code is a code developed under this Part (whether or not in response to a request under this Part).
130E Industry standards
For the purposes of this Part, an industry standard is a standard determined under this Part.
130F Industry activities
(1) For the purposes of this Part, each of the following is an industry activity:
(a) providing a commercial television broadcasting service; (b) providing a national television broadcasting service (within
the meaning of Schedule 4); (c) providing a community television broadcasting service; (d) providing a subscription television broadcasting service; (e) providing a television broadcasting service under a class
licence; (ea) providing a commercial radio broadcasting service; (eb) providing a national radio broadcasting service; (ec) providing a community radio broadcasting service; (ed) subscription radio broadcasting services provided under a
class licence; (ee) subscription radio narrowcasting services provided under a
class licence; (ef) open narrowcasting radio services provided under a class
licence; (f) providing a datacasting service under a datacasting licence
(other than a restricted datacasting licence); (fa) providing a restricted datacasting service under a restricted
datacasting licence;
Industry codes and industry standards Part 9B Interpretation Division 2
Section 130F
Broadcasting Services Act 1992 349
(g) importing, manufacturing or supplying domestic reception equipment that is capable of receiving any or all of the following:
(i) commercial television broadcasting services; (ii) national television broadcasting services;
(iii) community television broadcasting services; (iv) subscription television broadcasting services; (v) television broadcasting services provided under a class
licence; (va) commercial radio broadcasting services; (vb) national radio broadcasting services; (vc) community radio broadcasting services; (vd) subscription radio broadcasting services provided under
a class licence; (ve) subscription radio narrowcasting services provided
under a class licence; (vf) open narrowcasting radio services provided under a
class licence; (vi) datacasting services provided under datacasting
licences; (h) operating a transmitter under a datacasting transmitter
licence; (i) operating a multiplex transmitter under a digital radio
multiplex transmitter licence.
Reception of subscription television broadcasting services
(2) For the purposes of this section, it is immaterial whether domestic reception equipment is capable of receiving subscription television broadcasting services, or subscription radio broadcasting services, when used:
(a) in isolation; or (b) in conjunction with any other equipment.
Part 9B Industry codes and industry standards Division 2 Interpretation
Section 130G
350 Broadcasting Services Act 1992
Definitions
(3) In this section:
import means import into Australia.
national television broadcasting service has the same meaning as in Schedule 4.
supply has the same meaning as in the Competition and Consumer Act 2010.
130G Sections of the industry
(1) For the purposes of this Part, sections of the industry are to be ascertained in accordance with this section.
(2) The ACMA may, by legislative instrument, determine that persons carrying on, or proposing to carry on, one or more specified kinds of industry activity constitute a section of the industry for the purposes of this Part.
(3) The section must be identified in the determination by a unique name and/or number.
(4) A determination under subsection (2) has effect accordingly.
(5) Sections of the industry determined under subsection (2): (a) need not be mutually exclusive; and (b) may consist of the aggregate of any 2 or more sections of the
industry determined under subsection (2); and (c) may be subsets of a section of the industry determined under
subsection (2).
(6) Subsection (5) does not, by implication, limit subsection (2).
130H Participants in a section of the industry
For the purposes of this Part, if a person is a member of a group that constitutes a section of the industry, the person is a participant in that section of the industry.
Industry codes and industry standards Part 9B General principles relating to industry codes and industry standards Division 3
Section 130J
Broadcasting Services Act 1992 351
Division 3—General principles relating to industry codes and industry standards
130J Statement of regulatory policy
The Parliament intends that bodies or associations that the ACMA is satisfied represent sections of the industry should develop codes (industry codes) that are to apply to participants in that section of the industry in relation to the industry activities of the participants.
130K Examples of matters that may be dealt with by industry codes and industry standards
(1) This section sets out examples of matters that may be dealt with by industry codes and industry standards.
(2) The applicability of a particular example will depend on which section of the industry is involved.
(3) The examples are as follows: (a) the labelling of domestic reception equipment; (b) electronic program guides, including the provision of
information for the purpose of compiling electronic program guides;
(c) the numbering of digital services, including the use of logical channel numbers;
(d) application program interfaces (within the meaning of section 130A);
(e) conditional access systems (within the meaning of section 130A);
(f) the updating of software used in domestic reception equipment.
Part 9B Industry codes and industry standards Division 3 General principles relating to industry codes and industry standards
Section 130L
352 Broadcasting Services Act 1992
130L Industry codes and industry standards not to deal with certain matters
For the purposes of this Part, an industry code or an industry standard that deals with a particular matter has no effect to the extent (if any) to which the matter is dealt with by:
(a) a code registered, or a standard determined, under Part 6 of the Telecommunications Act 1997; or
(b) a code registered, or a standard determined, under Part 9 of this Act; or
(c) a standard determined under Part 9A of this Act; or (d) a standard determined under Part 4 of Schedule 4 to this Act;
or (e) a code registered, or a standard determined, under Part 5 of
Schedule 5 to this Act; or (f) a code registered, or a standard determined, under Part 4 of
Schedule 6 to this Act; or (fa) a code registered, or a standard determined, under Part 4 of
Schedule 7 to this Act; or (g) a code of practice notified to the ACMA under
subsection 8(1) of the Australian Broadcasting Corporation Act 1983; or
(h) a code of practice notified to the ACMA under subsection 10(1) of the Special Broadcasting Service Act 1991.
Industry codes and industry standards Part 9B Industry codes Division 4
Section 130M
Broadcasting Services Act 1992 353
Division 4—Industry codes
130M Registration of industry codes
(1) This section applies if: (a) the ACMA is satisfied that a body or association represents a
particular section of the industry; and (b) that body or association develops an industry code that
applies to participants in that section of the industry and deals with one or more matters relating to the industry activities of those participants; and
(c) the body or association gives a copy of the code to the ACMA; and
(d) the ACMA is satisfied that: (i) to the extent to which the code deals with one or more
matters of substantial relevance to the community—the code provides appropriate community safeguards for that matter or those matters; and
(ii) to the extent to which the code deals with one or more matters that are not of substantial relevance to the community—the code deals with that matter or those matters in an appropriate manner; and
(e) the ACMA is satisfied that, before giving the copy of the code to the ACMA:
(i) the body or association published a draft of the code and invited members of the public to make submissions to the body or association about the draft within a specified period; and
(ii) the body or association gave consideration to any submissions that were received from members of the public within that period; and
(f) the ACMA is satisfied that, before giving the copy of the code to the ACMA:
(i) the body or association published a draft of the code and invited participants in that section of the industry to make submissions to the body or association about the draft within a specified period; and
Part 9B Industry codes and industry standards Division 4 Industry codes
Section 130N
354 Broadcasting Services Act 1992
(ii) the body or association gave consideration to any submissions that were received from participants in that section of the industry within that period.
(2) The ACMA must register the code by including it in the Register of industry codes kept under section 130ZA.
(3) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must run for at least 30 days.
(4) If: (a) an industry code (the new code) is registered under this Part;
and (b) the new code is expressed to replace another industry code;
the other code ceases to be registered under this Part when the new code is registered.
130N ACMA may request codes
(1) If the ACMA is satisfied that a body or association represents a particular section of the industry, the ACMA may, by written notice given to the body or association, request the body or association to:
(a) develop an industry code that applies to participants in that section of the industry and deals with one or more specified matters relating to the industry activities of those participants; and
(b) give the ACMA a copy of the code within the period specified in the notice.
(2) The period specified in a notice under subsection (1) must run for at least 120 days.
(3) The ACMA must not make a request under subsection (1) in relation to a particular section of the industry unless the ACMA is satisfied that:
(a) the development of the code is necessary or convenient in order to:
(i) provide appropriate community safeguards; or
Industry codes and industry standards Part 9B Industry codes Division 4
Section 130P
Broadcasting Services Act 1992 355
(ii) otherwise deal with the performance or conduct of participants in that section of the industry; and
(b) in the absence of the request, it is unlikely that an industry code would be developed within a reasonable period.
(4) The ACMA may vary a notice under subsection (1) by extending the period specified in the notice.
(5) Subsection (4) does not, by implication, limit the application of subsection 33(3) of the Acts Interpretation Act 1901.
(6) A notice under subsection (1) may specify indicative targets for achieving progress in the development of the code (for example, a target of 60 days to develop a preliminary draft of the code).
130P Publication of notice where no body or association represents a section of the industry
(1) If the ACMA is satisfied that a particular section of the industry is not represented by a body or association, the ACMA may publish a notice in the Gazette:
(a) stating that, if such a body or association were to come into existence within a specified period, the ACMA would be likely to give a notice to that body or association under subsection 130N(1); and
(b) setting out the matter or matters relating to the industry activities that would be likely to be specified in the subsection 130N(1) notice.
(2) The period specified in a notice under subsection (1) must run for at least 60 days.
130Q Replacement of industry codes
(1) Changes to an industry code are to be achieved by replacing the code instead of varying the code.
(2) If the replacement code differs only in minor respects from the original code, section 130M has effect, in relation to the registration of the code, as if paragraphs 130M(1)(e) and (f) had not been enacted.
Part 9B Industry codes and industry standards Division 4 Industry codes
Section 130Q
356 Broadcasting Services Act 1992
Note: Paragraphs 130M(1)(e) and (f) deal with submissions about draft codes.
Industry codes and industry standards Part 9B Industry standards Division 5
Section 130R
Broadcasting Services Act 1992 357
Division 5—Industry standards
130R ACMA may determine an industry standard if a request for an industry code is not complied with
(1) This section applies if: (a) the ACMA has made a request under subsection 130N(1) in
relation to the development of a code that is to: (i) apply to participants in a particular section of the
industry; and (ii) deal with one or more matters relating to the industry
activities of those participants; and (b) any of the following conditions is satisfied:
(i) the request is not complied with; (ii) if indicative targets for achieving progress in the
development of the code were specified in the notice of request—any of those indicative targets were not met;
(iii) the request is complied with, but the ACMA subsequently refuses to register the code; and
(c) the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard in order to:
(i) provide appropriate community safeguards in relation to that matter or those matters; or
(ii) otherwise regulate adequately participants in that section of the industry in relation to that matter or those matters.
(2) The ACMA may, by legislative instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subsection is to be known as an industry standard.
(3) Before determining an industry standard under this section, the ACMA must consult the body or association to whom the request mentioned in paragraph (1)(a) was made.
(4) The Minister may give the ACMA a written direction as to the exercise of its powers under this section.
Part 9B Industry codes and industry standards Division 5 Industry standards
Section 130S
358 Broadcasting Services Act 1992
130S ACMA may determine industry standard where no industry body or association formed
(1) This section applies if: (a) the ACMA is satisfied that a particular section of the industry
is not represented by a body or association; and (b) the ACMA has published a notice under subsection 130P(1)
relating to that section of the industry; and (c) that notice:
(i) states that, if such a body or association were to come into existence within a particular period, the ACMA would be likely to give a notice to that body or association under subsection 130N(1); and
(ii) sets out one or more matters relating to the industry activities of the participants in that section of the industry; and
(d) no such body or association comes into existence within that period; and
(e) the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard in order to:
(i) provide appropriate community safeguards in relation to that matter or those matters; or
(ii) otherwise regulate adequately participants in that section of the industry in relation to that matter or those matters.
(2) The ACMA may, by legislative instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subsection is to be known as an industry standard.
(3) The Minister may give the ACMA a written direction as to the exercise of its powers under this section.
130T ACMA may determine industry standards—total failure of industry codes
(1) This section applies if: (a) an industry code that:
Industry codes and industry standards Part 9B Industry standards Division 5
Section 130T
Broadcasting Services Act 1992 359
(i) applies to participants in a particular section of the industry; and
(ii) deals with one or more matters relating to the industry activities of those participants;
has been registered under this Part for at least 180 days; and (b) the ACMA is satisfied that the code is totally deficient (as
defined by subsection (6)); and (c) the ACMA has given the body or association that developed
the code a written notice requesting that deficiencies in the code be addressed within a specified period; and
(d) that period ends and the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard that applies to participants in that section of the industry and deals with that matter or those matters.
(2) The period specified in a notice under paragraph (1)(c) must run for at least 30 days.
(3) The ACMA may, by legislative instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subsection is to be known as an industry standard.
(4) If the ACMA is satisfied that a body or association represents that section of the industry, the ACMA must consult the body or association before determining an industry standard under subsection (3).
(5) The industry code ceases to be registered under this Part on the day on which the industry standard comes into force.
(6) For the purposes of this section, an industry code that applies to participants in a particular section of the industry and deals with one or more matters relating to the industry activities of those participants is totally deficient if, and only if:
(a) the code is not operating to provide appropriate community safeguards in relation to that matter or those matters; or
(b) the code is not otherwise operating to regulate adequately participants in that section of the industry in relation to that matter or those matters.
Part 9B Industry codes and industry standards Division 5 Industry standards
Section 130U
360 Broadcasting Services Act 1992
(7) The Minister may give the ACMA a written direction as to the exercise of its powers under this section.
130U ACMA may determine industry standards—partial failure of industry codes
(1) This section applies if: (a) an industry code that:
(i) applies to participants in a particular section of the industry; and
(ii) deals with 2 or more matters relating to the industry activities of those participants;
has been registered under this Part for at least 180 days; and (b) section 130T does not apply to the code; and (c) the ACMA is satisfied that the code is deficient (as defined
by subsection (6)) to the extent to which the code deals with one or more of those matters (the deficient matter or deficient matters); and
(d) the ACMA has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period; and
(e) that period ends and the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard that applies to participants in that section of the industry and deals with the deficient matter or deficient matters.
(2) The period specified in a notice under paragraph (1)(d) must run for at least 30 days.
(3) The ACMA may, by legislative instrument, determine a standard that applies to participants in that section of the industry and deals with the deficient matter or deficient matters. A standard under this subsection is to be known as an industry standard.
(4) If the ACMA is satisfied that a body or association represents that section of the industry, the ACMA must consult the body or association before determining an industry standard under subsection (3).
Industry codes and industry standards Part 9B Industry standards Division 5
Section 130V
Broadcasting Services Act 1992 361
(5) On and after the day on which the industry standard comes into force, the industry code has no effect to the extent to which it deals with the deficient matter or deficient matters. However, this subsection does not affect:
(a) the continuing registration of the remainder of the industry code; or
(b) any investigation, proceeding or remedy in respect of a contravention of the industry code that occurred before that day.
(6) For the purposes of this section, an industry code that applies to participants in a particular section of the industry and deals with 2 or more matters relating to the industry activities of those participants is deficient to the extent to which it deals with a particular one of those matters if, and only if:
(a) the code is not operating to provide appropriate community safeguards in relation to that matter; or
(b) the code is not otherwise operating to regulate adequately participants in that section of the industry in relation to that matter.
(7) The Minister may give the ACMA a written direction as to the exercise of its powers under this section.
130V Compliance with industry standards
(1) If: (a) an industry standard that applies to participants in a particular
section of the industry is registered under this Part; and (b) a person is a participant in that section of the industry;
the person must comply with the industry standard.
Offence
(2) A person commits an offence if: (a) the person is subject to a requirement under subsection (1);
and (b) the person engages in conduct; and (c) the person’s conduct contravenes the requirement.
Part 9B Industry codes and industry standards Division 5 Industry standards
Section 130W
362 Broadcasting Services Act 1992
Penalty: 1,500 penalty units.
Civil penalty
(3) Subsection (1) is a civil penalty provision.
130W Formal warnings—breach of industry standards
(1) This section applies to a person who is a participant in a particular section of the industry.
(2) The ACMA may issue a formal warning if the person contravenes an industry standard registered under this Part.
130X Variation of industry standards
The ACMA may, by legislative instrument, vary an industry standard that applies to participants in a particular section of the industry if it is satisfied that it is necessary or convenient to do so to:
(a) provide appropriate community safeguards in relation to one or more matters relating to the industry activities of those participants; and
(b) otherwise regulate adequately those participants in relation to one or more matters relating to the industry activities of those participants.
130Y Revocation of industry standards
(1) The ACMA may, by legislative instrument, revoke an industry standard.
(2) If: (a) an industry code is registered under this Part; and (b) the code is expressed to replace an industry standard;
the industry standard is revoked when the code is registered.
Industry codes and industry standards Part 9B Industry standards Division 5
Section 130Z
Broadcasting Services Act 1992 363
130Z Public consultation on industry standards
(1) Before determining or varying an industry standard, the ACMA must:
(a) cause to be published in a newspaper circulating in each State a notice:
(i) stating that the ACMA has prepared a draft of the industry standard or variation; and
(ii) stating that free copies of the draft will be made available to members of the public during normal office hours throughout the period specified in the notice; and
(iii) specifying the place or places where the copies will be available; and
(iv) inviting interested persons to give written comments about the draft to the ACMA within the period specified under subparagraph (ii); and
(b) make copies of the draft available in accordance with the notice.
(2) The period specified under subparagraph (1)(a)(ii) must run for at least 30 days after the publication of the notice.
(3) Subsection (1) does not apply to a variation if the variation is of a minor nature.
(4) If interested persons have given comments in accordance with a notice under subsection (1), the ACMA must have due regard to those comments in determining or varying the industry standard, as the case may be.
(5) In this section:
State includes the Australian Capital Territory and the Northern Territory.
Part 9B Industry codes and industry standards Division 6 Register of industry codes and industry standards
Section 130ZA
364 Broadcasting Services Act 1992
Division 6—Register of industry codes and industry standards
130ZA ACMA to maintain Register of industry codes and industry standards
(1) The ACMA is to maintain a Register in which the ACMA includes:
(a) all industry codes required to be registered under this Part; and
(b) all industry standards; and (c) all requests made under section 130N; and (d) all notices under section 130P.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZBA
Broadcasting Services Act 1992 365
Part 9C—Access to commercial television broadcasting services provided with the use of a satellite
130ZBA Simplified outline
The following is a simplified outline of this Part:
• A conditional access scheme is a scheme that sets out rules relating to access to services provided under a commercial television broadcasting licence allocated under section 38C.
• The ACMA may register a conditional access scheme developed by a body or association that represents commercial television broadcasting licensees.
• If no conditional access scheme is developed by a body or association that represents commercial television broadcasting licensees, the ACMA may formulate and register a conditional access scheme.
Note: Under paragraph 7A(1)(c) of Schedule 2, it is a condition of a licence allocated under section 38C that the licensee will ensure that any conditional access system relating to the services provided under the licence will comply with any conditional access scheme registered under this Part.
130ZB Objectives of conditional access scheme—South Eastern Australia TV3 licence area and Northern Australia TV3 licence area
Scope
(1) This section applies to a commercial television broadcasting licence allocated under section 38C for:
(a) the South Eastern Australia TV3 licence area; or (b) the Northern Australia TV3 licence area.
Part 9C Access to commercial television broadcasting services provided with the use of a satellite
Section 130ZB
366 Broadcasting Services Act 1992
Objectives
(2) A conditional access scheme for the section 38C licence area complies with this section if the scheme is directed towards the achievement of the objectives set out in this section.
(3) The first objective is that: (a) the scheme should specify all of the following as areas that
are taken to be areas (category A reception areas) in which people are unable to receive adequate reception of all of the applicable terrestrial digital commercial television broadcasting services:
(i) the related terrestrial licence areas; (ii) the external Territory in the section 38C licence area;
(iii) areas (open access areas) identified by the scheme administrator as areas where it is reasonable to expect that, at the end of the simulcast period for the simulcast area, people will be unable to receive adequate reception of all of the applicable terrestrial digital commercial television broadcasting services; and
(aa) the scheme should specify that the scheme administrator must have regard to the following when deciding whether to identify an area as an open access area:
(i) the extent to which people in the area have adequate reception of applicable terrestrial digital commercial television broadcasting services;
(ii) the extent to which it is predicted, on a basis agreed by the ACMA and the scheme administrator if the scheme does not identify the ACMA as the scheme administrator, that people in the area will have adequate reception of those services at the end of the simulcast period for the simulcast area;
(iii) any information provided by a commercial television broadcasting licensee or the ACMA about the extent to which people in the area have or will have adequate reception of those services;
(iv) any representations made to the scheme administrator by persons who reside in the area;
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZB
Broadcasting Services Act 1992 367
(v) any other matters the scheme administrator considers relevant; and
(ab) the scheme should, unless it identifies the ACMA as the scheme administrator, specify that the scheme administrator will promptly give the ACMA descriptions of open access areas for publication on the ACMA’s website; and
(b) if a terrestrial licensee for a related terrestrial licence area is authorised, under paragraph 7(2A)(d) of Schedule 2, to provide a commercial television broadcasting service outside the related terrestrial licence area to one or more persons who are in the section 38C licence area—the scheme should provide that those persons are taken in to be in a category A reception area.
(4) The second objective is that the scheme should: (a) specify one or more areas included in the section 38C licence
area; or (b) specify a method for ascertaining one or more areas included
in the section 38C licence area; that are taken to be areas (category B reception areas) in which people are unable to receive adequate reception of all of the applicable terrestrial digital commercial television broadcasting services.
(5) The third objective is that a conditional access system that relates to any of the commercial television broadcasting services provided under the section 38C licence must enable persons in:
(a) a category A reception area; or (b) a category B reception area; or (c) a declared service-deficient area;
to receive those commercial television broadcasting services.
(6) Subsection (5) has effect subject to subsections (14) and (15).
(7) The fourth objective is that the scheme should provide that so much of the section 38C licence area as is neither:
(a) a category A reception area; nor (b) a category B reception area;
is a category C reception area.
Part 9C Access to commercial television broadcasting services provided with the use of a satellite
Section 130ZB
368 Broadcasting Services Act 1992
(8) The fifth objective is that the scheme must: (a) if the scheme is developed by a body or association that the
ACMA is satisfied represents commercial television broadcasting licensees—identify a company; or
(b) if the scheme is formulated by the ACMA—identify the ACMA;
as the scheme administrator for the scheme.
(9) The sixth objective is that the scheme must authorise the scheme administrator to issue a certificate (a reception certificate) to a person in a category C reception area (but not in a declared service-deficient area) stating that the person is unable to receive adequate reception of all of the applicable terrestrial digital commercial television broadcasting services.
(10) The seventh objective is that a conditional access system that relates to any of the commercial television broadcasting services provided under the section 38C licence must enable a person who:
(a) is in a category C reception area; and (aa) is not in a declared service-deficient area; and (b) holds a reception certificate;
to receive those commercial television broadcasting services.
(11) Subsection (10) has effect subject to subsections (14) and (15).
(12) The eighth objective is that, if an application for a reception certificate is made in accordance with the scheme, the application must:
(a) be dealt with by the scheme administrator within 15 business days after receiving the application; and
(b) be accepted, and dealt with, without requiring: (i) the payment of a fee by the applicant; or
(ii) the applicant to incur any expenses (other than the expense of filling in the application and sending it to the scheme administrator).
(13) The ninth objective is that the scheme must authorise the scheme administrator to revoke a reception certificate issued to a person if the person is no longer eligible for the reception certificate.
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZB
Broadcasting Services Act 1992 369
(13A) For the purposes of subsection (13), if: (a) at a particular time, a reception certificate was issued to a
person; and (b) after that time, the person has not moved to new premises;
the person is taken to be eligible for the reception certificate.
(14) The tenth objective is that, if persons are: (a) in a local market area; and (b) not in a category A reception area;
a conditional access system that relates to any of the commercial television broadcasting services provided under the section 38C licence must not enable those persons to receive those commercial television broadcasting services earlier than 6 months before the time when the local market area becomes a digital-only local market area.
(15) The 11th objective is that, if persons are: (a) in a simulcast area; and (b) not in a local market area; and (c) not in a category A reception area;
a conditional access system that relates to any of the commercial television broadcasting services provided under the section 38C licence must not enable those persons to receive those commercial television broadcasting services earlier than 6 months before the end of the simulcast period for the simulcast area.
(15A) The 12th objective is that, if: (a) at a particular time, a person was in a category B reception
area; and (b) at that time, a conditional access system that relates to any of
the commercial television broadcasting services provided under the section 38C licence enabled the person to receive those commercial television broadcasting services; and
(c) after that time: (i) the person ceases to be in the category B reception area;
and (ii) the person has not moved to new premises;
Part 9C Access to commercial television broadcasting services provided with the use of a satellite
Section 130ZB
370 Broadcasting Services Act 1992
the conditional access system must enable the person to receive those commercial television broadcasting services.
(15B) The 13th objective is that, if: (a) at a particular time, a person was in a declared
service-deficient area; and (b) at that time, a conditional access system that relates to any of
the commercial television broadcasting services provided under the section 38C licence enabled the person to receive those commercial television broadcasting services; and
(c) after that time: (i) the person ceases to be in the declared service-deficient
area; and (ii) the person has not moved to new premises;
the conditional access system must enable the person to receive those commercial television broadcasting services.
(16) In this section:
digital-only local market area has the same meaning as in Schedule 4.
local market area has the same meaning as in Schedule 4.
related terrestrial licence area: (a) in relation to a licence allocated under section 38C for the
South Eastern Australia TV3 licence area—means a terrestrial licence area mentioned in column 3 of item 1 of the table in subsection 38C(1); or
(b) in relation to a licence allocated under section 38C for the Northern Australia TV3 licence area—means a terrestrial licence area mentioned in column 3 of item 2 of the table in subsection 38C(1).
simulcast area means an area covered by paragraph 6(3)(c) of Schedule 4.
simulcast period has the same meaning as in Schedule 4.
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZBB
Broadcasting Services Act 1992 371
terrestrial licence means a commercial television broadcasting licence other than a commercial television broadcasting licence allocated under section 38C or subsection 40(1).
terrestrial licence area means the licence area of a terrestrial licence. Note 1: For adequate reception, see section 130ZFA.
Note 2: For applicable terrestrial digital commercial television broadcasting services, see section 130ZG.
Note 3: For declared service-deficient area, see section 130ZH.
130ZBB Objectives of conditional access scheme—Western Australia TV3 licence area
Scope
(1) This section applies to a commercial television broadcasting licence allocated under section 38C for the Western Australia TV3 licence area.
Objectives
(2) A conditional access scheme for the section 38C licence area complies with this section if the scheme is directed towards the achievement of the objectives set out in this section.
(3) The first objective is that: (a) the scheme should specify all of the following as areas that
are, subject to paragraph (c), taken to be areas (category A reception areas) in which people are unable to receive adequate reception of all of the applicable terrestrial digital commercial television broadcasting services:
(i) the related terrestrial licence areas; (ii) the external Territories in the section 38C licence area;
(iii) areas (open access areas) identified by the scheme administrator as areas where it is reasonable to expect that, at the end of the simulcast period for the simulcast area, people will be unable to receive adequate
Part 9C Access to commercial television broadcasting services provided with the use of a satellite
Section 130ZBB
372 Broadcasting Services Act 1992
reception of all of the applicable terrestrial digital commercial television broadcasting services; and
(aa) the scheme should specify that the scheme administrator must have regard to the following when deciding whether to identify an area as an open access area:
(i) the extent to which people in the area have adequate reception of applicable terrestrial digital commercial television broadcasting services;
(ii) the extent to which it is predicted, on a basis agreed by the ACMA and the scheme administrator if the scheme does not identify the ACMA as the scheme administrator, that people in the area will have adequate reception of those services at the end of the simulcast period for the simulcast area;
(iii) any information provided by a commercial television broadcasting licensee or the ACMA about the extent to which people in the area have or will have adequate reception of those services;
(iv) any representations made to the scheme administrator by persons who reside in the area;
(v) any other matters the scheme administrator considers relevant; and
(ab) the scheme should, unless it identifies the ACMA as the scheme administrator, specify that the scheme administrator will promptly give the ACMA descriptions of open access areas for publication on the ACMA’s website; and
(b) if a terrestrial licensee for a related terrestrial licence area is authorised, under paragraph 7(2A)(d) of Schedule 2, to provide a commercial television broadcasting service outside the related terrestrial licence area to one or more persons who are in the section 38C licence area—the scheme should provide that those persons are, subject to paragraph (c) of this subsection, taken to be in a category A reception area; and
(c) the scheme should provide that a person in a category D reception area is taken not to be in a category A reception area.
Note: For category D reception area, see subsection (8).
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZBB
Broadcasting Services Act 1992 373
(4) The second objective is that the scheme should: (a) specify one or more areas included in the Perth TV1 licence
area; or (b) specify a method for ascertaining one or more areas included
in the Perth TV1 licence area; that are taken to be areas (category B reception areas) in which people are unable to receive adequate reception of all of the applicable terrestrial digital commercial television broadcasting services.
(5) The third objective is that a conditional access system that relates to any of the commercial television broadcasting services provided under the section 38C licence must enable persons in:
(a) a category A reception area; or (b) a category B reception area; or (c) a declared service-deficient area;
to receive those commercial television broadcasting services.
(6) Subsection (5) has effect subject to subsections (18) and (19).
(7) The fourth objective is that the scheme should provide that so much of the section 38C licence area as is not:
(a) a category A reception area; or (b) a category B reception area; or (c) a category D reception area;
is a category C reception area. Note: For category D reception area, see subsection (8).
(8) The fifth objective is that the scheme should: (a) specify one or more related terrestrial sub-areas; or (b) specify a method for ascertaining one or more related
terrestrial sub-areas; each of which is taken to be an area (a category D reception area) in which people will, after the end of the simulcast period, or the simulcast-equivalent period, as the case may be, for the related terrestrial licence area in which the related terrestrial sub-area is included, be able to receive adequate reception of all the applicable terrestrial digital commercial television broadcasting services.
Part 9C Access to commercial television broadcasting services provided with the use of a satellite
Section 130ZBB
374 Broadcasting Services Act 1992
(9) The sixth objective is that the scheme must: (a) if the scheme is developed by a body or association that the
ACMA is satisfied represents commercial television broadcasting licensees—identify a company; or
(b) if the scheme is formulated by the ACMA—identify the ACMA;
as the scheme administrator for the scheme.
(10) The seventh objective is that the scheme must authorise the scheme administrator to issue a certificate (a reception certificate) to:
(a) a person in a category C reception area (but not in a declared service-deficient area); or
(b) a person in a category D reception area (but not in a declared service-deficient area);
stating that the person is unable to receive adequate reception of all of the applicable terrestrial digital commercial television broadcasting services.
(11) The eighth objective is that a conditional access system that relates to any of the commercial television broadcasting services provided under the section 38C licence must enable a person who:
(a) is in: (i) a category C reception area; or
(ii) a category D reception area; and (b) is not in a declared service-deficient area; and (c) holds a reception certificate;
to receive those commercial television broadcasting services.
(12) Subsection (10) has effect subject to subsections (18) and (19).
(13) The ninth objective is that, if an application for a reception certificate is made in accordance with the scheme, the application must:
(a) be dealt with by the scheme administrator within 15 business days after receiving the application; and
(b) be accepted, and dealt with, without requiring: (i) the payment of a fee by the applicant; or
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZBB
Broadcasting Services Act 1992 375
(ii) the applicant to incur any expenses (other than the expense of filling in the application and sending it to the scheme administrator).
(14) The tenth objective is that, if: (a) a person is in a category D reception area; and (b) the category D reception area is included in a related
terrestrial licence area; the scheme must not allow the person to apply for a reception certificate before the earlier of the following:
(c) the start of the designated digital service day for the category D reception area;
(d) the end of the simulcast period, or the simulcast-equivalent period, as the case may be, for the related terrestrial licence area.
Note: For designated digital service day, see subsection (15).
(15) The 11th objective is that, if: (a) a category D reception area is included in a related terrestrial
licence area; and (b) a particular day (the relevant day) occurs during the
simulcast period, or the simulcast-equivalent period, as the case may be, for the related terrestrial licence area; and
(c) the relevant day is the first day on which all of the core/primary commercial television broadcasting services that are authorised to be provided in the category D reception area are being:
(i) provided in the category D reception area; and (ii) transmitted in digital mode;
then: (d) the scheme must provide that the relevant day is the
designated digital service day for the category D reception area; and
(e) the scheme must require the scheme administrator: (i) to give the ACMA a written notice informing the
ACMA that the relevant day is the designated digital service day for the category D reception area; and
(ii) to do so as soon as practicable after the relevant day.
Part 9C Access to commercial television broadcasting services provided with the use of a satellite
Section 130ZBB
376 Broadcasting Services Act 1992
Note: The ACMA must maintain a Register in which the ACMA includes any designated digital service days, see section 130ZEA.
(16) The 12th objective is that the scheme must authorise the scheme administrator to revoke a reception certificate issued to a person if the person is no longer eligible for the reception certificate.
(17) For the purposes of subsection (16), if: (a) at a particular time, a reception certificate was issued to a
person; and (b) after that time, the person has not moved to new premises;
the person is taken to be eligible for the reception certificate.
(18) The 13th objective is that, if persons are: (a) in a local market area; and (b) not in a category A reception area; and (c) not in a category D reception area;
a conditional access system that relates to any of the commercial television broadcasting services provided under the section 38C licence must not enable those persons to receive those commercial television broadcasting services earlier than 6 months before the time when the local market area becomes a digital-only local market area.
(19) The 14th objective is that, if persons are: (a) in a simulcast area; and (b) not in a local market area; and (c) not in a category A reception area; and (d) not in a category D reception area;
a conditional access system that relates to any of the commercial television broadcasting services provided under the section 38C licence must not enable those persons to receive those commercial television broadcasting services earlier than 6 months before the end of the simulcast period for the simulcast area.
(20) The 15th objective is that, if: (a) at a particular time, a person was in a category B reception
area; and
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZBB
Broadcasting Services Act 1992 377
(b) at that time, a conditional access system that relates to any of the commercial television broadcasting services provided under the section 38C licence enabled the person to receive those commercial television broadcasting services; and
(c) after that time: (i) the person ceases to be in the category B reception area;
and (ii) the person has not moved to new premises;
the conditional access system must enable the person to receive those commercial television broadcasting services.
(21) The 16th objective is that, if: (a) at a particular time, a person was in a declared
service-deficient area; and (b) at that time, a conditional access system that relates to any of
the commercial television broadcasting services provided under the section 38C licence enabled the person to receive those commercial television broadcasting services; and
(c) after that time: (i) the person ceases to be in the declared service-deficient
area; and (ii) the person has not moved to new premises;
the conditional access system must enable the person to receive those commercial television broadcasting services.
(22) In this section:
digital-only local market area has the same meaning as in Schedule 4.
local market area has the same meaning as in Schedule 4.
related terrestrial licence area means a terrestrial licence area mentioned in column 3 of item 3 of the table in subsection 38C(1).
related terrestrial sub-area means an area included in a related terrestrial licence area.
simulcast area means an area covered by paragraph 6(3)(c) of Schedule 4.
Part 9C Access to commercial television broadcasting services provided with the use of a satellite
Section 130ZBC
378 Broadcasting Services Act 1992
simulcast period has the same meaning as in Schedule 4.
terrestrial licence means a commercial television broadcasting licence other than a commercial television broadcasting licence allocated under section 38C or subsection 40(1).
terrestrial licence area means the licence area of a terrestrial licence. Note 1: For adequate reception, see section 130ZFA.
Note 2: For applicable terrestrial digital commercial television broadcasting services, see section 130ZG.
Note 3: For declared service-deficient area, see section 130ZH.
130ZBC Publishing details of open access areas on the ACMA’s website
If the ACMA becomes aware of an open access area identified by a scheme administrator under a conditional access scheme that the ACMA is satisfied complies with section 130ZB or 130ZBB, the ACMA must publish on its website a description of the open access area. Note: This applies whether the scheme administrator is the ACMA or
another person.
130ZC Registration of conditional access scheme developed by representative body or association
Scope
(1) This section applies if: (a) the ACMA is satisfied that a body or association represents
commercial television broadcasting licensees; and (b) that body or association develops a conditional access
scheme (the new scheme) for the licence area of a commercial television broadcasting licence allocated under section 38C; and
(c) the body or association gives a copy of the new scheme to the ACMA; and
(d) any of the following subparagraphs applies:
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZCAA
Broadcasting Services Act 1992 379
(i) the body or association gives the copy of the new scheme to the ACMA within 45 days after the first or only occasion on which a licence for the licence area is allocated under section 38C;
(ii) the body or association gives the copy of the new scheme to the ACMA in response to an invitation under section 130ZCAA;
(iii) the new scheme is expressed to replace another conditional access scheme registered under this section or section 130ZCA; and
(da) the ACMA is satisfied that: (i) if the scheme is for the South Eastern Australia TV3
licence area or the Northern Australia TV3 licence area—the scheme complies with section 130ZB; or
(ii) if the scheme is for the Western Australia TV3 licence area—the scheme complies with section 130ZBB; and
(e) the ACMA is satisfied that the new scheme is consistent with the principle that a person in the licence area should have adequate reception of:
(i) all of the applicable terrestrial digital commercial television broadcasting services; or
(ii) all of the commercial television broadcasting services that the section 38C licensee is required to provide under clauses 7B and 7C of Schedule 2.
Registration
(2) The ACMA must: (a) register the new scheme by including it in the register under
section 130ZE; and (b) do so within 35 days after the copy of the new scheme is
given to the ACMA.
130ZCAA ACMA may invite representative body or association to develop a revised conditional access scheme
Scope
(1) This section applies if:
Part 9C Access to commercial television broadcasting services provided with the use of a satellite
Section 130ZCAA
380 Broadcasting Services Act 1992
(a) the ACMA is satisfied that a body or association represents commercial television broadcasting licensees; and
(b) that body or association develops a conditional access scheme (the new scheme) for the licence area of a commercial television broadcasting licence allocated under section 38C; and
(c) the body or association gives a copy of the new scheme to the ACMA; and
(d) the body or association gives the copy of the new scheme to the ACMA within 45 days after the first or only occasion on which a licence for the licence area is allocated under section 38C;
and either: (e) the ACMA is not satisfied that:
(i) if the new scheme is for the South Eastern Australia TV3 licence area or the Northern Australia TV3 licence area—the new scheme complies with section 130ZB; or
(ii) if the new scheme is for the Western Australia TV3 licence area—the scheme complies with section 130ZBB; and
(f) the ACMA is not satisfied that the new scheme is consistent with the principle that a person in the licence area should have adequate reception of:
(i) all of the applicable terrestrial digital commercial television broadcasting services; or
(ii) all of the commercial television broadcasting services that the section 38C licensee is required to provide under clauses 7B and 7C of Schedule 2.
Invitation
(2) The ACMA must: (a) by written notice given to the body or association, invite the
body or association to: (i) develop a revised conditional access scheme for the
licence area; and (ii) give a copy of the revised scheme to the ACMA within
30 days after the invitation is given; and
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZCAB
Broadcasting Services Act 1992 381
(b) do so within 60 days after the copy of the new scheme is given to the ACMA.
130ZCAB ACMA may request development of replacement conditional access scheme
Scope
(1) This section applies if: (a) a conditional access scheme for a licence area is registered
under section 130ZC or 130ZCA; and (b) if the scheme is registered under section 130ZC—the ACMA
is satisfied that: (i) if the scheme is for the South Eastern Australia TV3
licence area or the Northern Australia TV3 licence area—the scheme is not achieving one or more of the objectives set out in section 130ZB; or
(ii) if the scheme is for the Western Australia TV3 licence area—the scheme is not achieving one or more of the objectives set out in section 130ZBB.
Request
(2) The ACMA may, by written notice given to the appropriate body or association:
(a) request the body or association to: (i) develop another conditional access scheme (the
replacement scheme) that is expressed to replace the scheme registered under section 130ZC or 130ZCA; and
(ii) give a copy of the replacement scheme to the ACMA within the period specified in the notice; and
(b) specify particular matters that, in the ACMA’s opinion, should be addressed in the replacement scheme.
(2A) For the purposes of subsection (2), the appropriate body or association is:
(a) if the scheme is registered under section 130ZC—the body or association that developed the scheme; or
Part 9C Access to commercial television broadcasting services provided with the use of a satellite
Section 130ZCA
382 Broadcasting Services Act 1992
(b) if the scheme is registered under section 130ZCA—a body or organisation that the ACMA is satisfied represents commercial television broadcasting licensees.
(3) The period specified in a notice under subsection (2): (a) must not be shorter than 30 days after the notice is given; and (b) must not be longer than 60 days after the notice is given.
130ZCA Registration of conditional access scheme formulated by the ACMA
Scope
(1) This section applies if: (a) the following conditions are satisfied:
(i) a commercial television broadcasting licence is allocated under section 38C for a particular licence area;
(ii) that is the first or only occasion on which a commercial television broadcasting licence is allocated under section 38C for the licence area;
(iii) if the ACMA has not given an invitation under section 130ZCAA in relation to the licence area—90 days pass after the allocation of the licence, and no conditional access scheme for the licence area has been registered, or is required to be registered, under section 130ZC;
(iv) if the ACMA has given an invitation under section 130ZCAA in relation to the licence area—60 days pass after the invitation is given, and no conditional access scheme for the licence area has been registered, or is required to be registered, under section 130ZC; or
(b) the following conditions are satisfied: (i) a commercial television broadcasting licence is
allocated under section 38C for a particular licence area; (ii) a conditional access scheme for the licence area is
registered under section 130ZC;
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZCA
Broadcasting Services Act 1992 383
(iii) the ACMA gives a notice under subsection 130ZCAB(2) to a body or association in relation to the scheme;
(iv) the body or association does not give the ACMA a copy of a replacement scheme within the period specified in the notice; or
(c) the following conditions are satisfied: (i) a commercial television broadcasting licence is
allocated under section 38C for a particular licence area; (ii) a conditional access scheme for the licence area is
registered under section 130ZC; (iii) the ACMA gives a notice under
subsection 130ZCAB(2) to a body or association in relation to the scheme;
(iv) the body or association gives the ACMA a copy of a replacement scheme within the period specified in the notice;
(v) 35 days pass after the copy is given to the ACMA, and the replacement scheme has not been, and is not required to be, registered under section 130ZC.
Scheme
(2) The ACMA may, by legislative instrument, formulate a conditional access scheme for the licence area.
(3) The ACMA must not formulate a conditional access scheme unless:
(a) the ACMA is satisfied that: (i) if the scheme is for the South Eastern Australia TV3
licence area or the Northern Australia TV3 licence area—the scheme complies with section 130ZB; or
(ii) if the scheme is for the Western Australia TV3 licence area—the scheme complies with section 130ZBB; and
(b) the ACMA is satisfied that the scheme is consistent with the principle that a person in the licence area should have adequate reception of:
(i) all of the applicable terrestrial digital commercial television broadcasting services; or
Part 9C Access to commercial television broadcasting services provided with the use of a satellite
Section 130ZD
384 Broadcasting Services Act 1992
(ii) all of the commercial television broadcasting services that the section 38C licensee is required to provide under clauses 7B and 7C of Schedule 2.
Registration
(4) The ACMA must register a scheme formulated under subsection (2) by including it in the register under section 130ZE.
Consultation
(5) Before registering a conditional access scheme formulated under subsection (2), the ACMA must:
(a) publish on its website: (i) a draft of the scheme; and
(ii) a notice inviting interested persons to give written submissions about the draft to the ACMA within the period specified in the notice; and
(b) if any submissions are given to the ACMA within that period—have due regard to those submissions in formulating the scheme.
(6) The period specified under subparagraph (5)(a)(ii) must not be shorter than 14 days.
130ZD Replacement of conditional access scheme
(1) Changes to a conditional access scheme are to be achieved by replacing the scheme instead of varying the scheme.
(2) If: (a) the replacement scheme is formulated by the ACMA; and (b) the replacement scheme differs in only minor respects from
the original scheme; section 130ZCA has effect, in relation to the registration of the scheme, as if subsections 130ZCA(5) and (6) had not been enacted. Note: Subsections 130ZCA(5) and (6) deal with submissions about a draft
scheme formulated by the ACMA.
(3) If:
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZE
Broadcasting Services Act 1992 385
(a) a conditional access scheme is registered under this Part; and (b) the scheme is expressed to replace another conditional access
scheme; the other conditional access scheme ceases to be registered under this Part when the replacement scheme is registered.
(4) The replacement of a conditional access scheme does not affect the continuity of a reception certificate issued under the scheme.
130ZE ACMA to maintain register of conditional access schemes
(1) The ACMA is to maintain a Register in which the ACMA includes any conditional access schemes required to be registered under section 130ZC or 130ZCA.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the ACMA’s website.
(4) The Register is not a legislative instrument.
130ZEA ACMA to maintain register of designated digital service days
(1) The ACMA is to maintain a Register in which the ACMA includes any designated digital service days (within the meaning of section 130ZBB) for category D reception areas (within the meaning of that section).
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the ACMA’s website.
(4) The Register is not a legislative instrument.
Part 9C Access to commercial television broadcasting services provided with the use of a satellite
Section 130ZF
386 Broadcasting Services Act 1992
130ZF ACMA may direct a scheme administrator to issue a reception certificate etc.
Scope
(1) This section applies if: (a) a conditional access scheme is registered under
section 130ZC; and (b) either:
(i) a person is in a category C reception area (within the meaning of the scheme), but is not in a declared service-deficient area; or
(ii) if the scheme is for the Western Australia TV3 licence area—a person is in a category D reception area (within the meaning of the scheme), but is not in a declared service-deficient area; and
(c) the person considers that he or she does not have adequate reception of all of the applicable terrestrial digital commercial television broadcasting services.
Note: For applicable terrestrial digital commercial television broadcasting services, see section 130ZG.
Investigation of complaint
(2) The person may make a complaint to the ACMA about the matter, so long as:
(a) the following conditions are satisfied: (i) the person has previously made an application under the
scheme for a reception certificate; (ii) the application was made in accordance with the
scheme; (iii) the scheme administrator refused to issue the reception
certificate; or (b) the following conditions are satisfied:
(i) the person has previously held a reception certificate under the scheme;
(ii) the scheme administrator revoked the reception certificate; or
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZF
Broadcasting Services Act 1992 387
(c) the following conditions are satisfied: (i) the person has previously made an application under the
scheme for a reception certificate; (ii) the application was made in accordance with the
scheme; (iii) the scheme administrator did not deal with the
application within 15 business days after receiving the application.
(3) The ACMA must investigate the complaint in a manner determined by the ACMA.
(4) However, the ACMA need not investigate the complaint if it is satisfied that the complaint:
(a) is frivolous or vexatious; or (b) was not made in good faith.
Direction to issue reception certificate
(5) If: (a) the person makes a complaint under paragraph (2)(a) or (b);
and (b) having investigated the complaint, the ACMA is satisfied
that the person does not have adequate reception of all of the applicable terrestrial digital commercial television broadcasting services;
the ACMA may, by written notice given to the scheme administrator, direct the scheme administrator to issue a reception certificate to the person within a specified period.
(6) The specified period must not be longer than 28 days.
(7) In deciding whether to give a direction under subsection (5), it is to be presumed that the person does not have adequate reception of all of the applicable terrestrial digital commercial television broadcasting services, unless the scheme administrator satisfies the ACMA that the person has adequate reception of all of those services.
Part 9C Access to commercial television broadcasting services provided with the use of a satellite
Section 130ZF
388 Broadcasting Services Act 1992
Consultation
(8) Before giving a direction under subsection (5), the ACMA must, by written notice given to the scheme administrator:
(a) invite the scheme administrator to make a submission to the ACMA, within the time limit specified in the notice, about the question of whether the person has adequate reception of all of the applicable terrestrial digital commercial television broadcasting services; and
(b) have regard to any submission received within that time limit.
(9) The time limit must not be longer than 28 days.
Compliance with direction
(10) The scheme administrator must comply with a direction under subsection (5).
(11) If the scheme administrator does not comply with a direction under subsection (5), then:
(a) this Act; and (b) the conditional access scheme;
have effect as if, at the end of the last day for compliance, the scheme administrator had issued a reception certificate to the person.
Determination that reception certificate is taken to have been issued to complainant
(12) If the person makes a complaint under paragraph (2)(c), the ACMA may determine that:
(a) this Act; and (b) the conditional access scheme;
have effect as if the scheme administrator had issued a reception certificate to the person.
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZFA
Broadcasting Services Act 1992 389
Revocation of reception certificate taken to have been issued
(13) This Act does not prevent the subsequent revocation of a reception certificate that is taken to have been issued under subsection (11) or (12) if the revocation is on the ground that the holder of the reception certificate is no longer eligible for the reception certificate.
Notification of results of investigation
(14) If: (a) the person makes a complaint under subsection (2); and (b) the ACMA investigates the complaint;
the ACMA must notify the person of the results of the investigation.
130ZFA Adequate reception
The ACMA may, by legislative instrument, determine that, for the purposes of this Part, adequate reception has the meaning ascertained in accordance with the determination.
130ZG Applicable terrestrial digital commercial television broadcasting services
Scope
(1) This section applies if a person is in the licence area of a commercial television broadcasting licence.
Applicable terrestrial digital commercial television broadcasting services
(2) For the purposes of the application of this Part to the person, a service is an applicable terrestrial digital commercial television broadcasting service if it is:
(a) a commercial television broadcasting service that is: (i) provided by a commercial television broadcasting
licensee in the licence area; and (ii) transmitted in digital mode; or
Part 9C Access to commercial television broadcasting services provided with the use of a satellite
Section 130ZG
390 Broadcasting Services Act 1992
(b) a service that: (i) is merely a re-transmission of the programs provided by
a commercial television broadcasting service described in paragraph (a); and
(ii) is provided in the licence area; and (iii) is transmitted in digital mode; and (iv) is provided by a person declared by the ACMA under
subsection (2A).
(2A) If the ACMA is satisfied that a person represents one or more commercial television broadcasting licensees, the ACMA may declare the person for the purposes of subparagraph (2)(b)(iv).
(2B) If the declaration under subsection (2A) is made in writing, the declaration is not a legislative instrument.
(2C) For the purposes of this Part, an applicable terrestrial digital commercial television broadcasting service described in paragraph (2)(b) is taken to be the same as the commercial television broadcasting service mentioned in subparagraph (2)(b)(i). Note: This means a person is taken to receive adequate reception of a single
applicable terrestrial digital commercial television broadcasting service whether the person receives adequate reception of: (a) the commercial television broadcasting service described in
paragraph (2)(a); or (b) the service of re-transmission described in paragraph (2)(b) by
reference to that commercial television broadcasting service.
Exemptions
(3) This section does not apply to a commercial television broadcasting licence allocated under section 38C or subsection 40(1).
Definitions
(4) In this section:
digital mode has the same meaning as in Schedule 4.
re-transmission has the same meaning as in section 212.
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZH
Broadcasting Services Act 1992 391
130ZH Declared service-deficient areas
Declaration
(1) If: (a) the ACMA is satisfied that the number of applicable
terrestrial digital commercial television broadcasting services provided to persons in a particular area (the relevant area) is less than the number of commercial television broadcasting services required by clauses 7B and 7C of Schedule 2 to be provided under a commercial television broadcasting licence allocated under section 38C; and
(b) the relevant area is included in a terrestrial licence area; and (c) the terrestrial licence area is wholly or partly included in the
licence area of the section 38C licence; the ACMA must, by legislative instrument, declare that the relevant area is a declared service-deficient area for the purposes of this Part.
(2) The ACMA must not make a declaration under subsection (1) in relation to an area if:
(a) part of the area is included in a local market area; and (b) the remainder of the area is outside the local market area.
(3) The ACMA must not make a declaration under subsection (1) in relation to an area (the relevant area) before:
(a) if: (i) the relevant area is included in a local market area; and
(ii) the local market area became a digital-only local market area before the commencement of this section;
the end of the 9-month period beginning when the local market area became a digital-only local market area; or
(b) if: (i) the relevant area is included in a local market area; and
(ii) the local market area becomes a digital-only local market area after the commencement of this section;
the end of the 3-month period beginning when the local market area becomes a digital-only local market area; or
Part 9C Access to commercial television broadcasting services provided with the use of a satellite
Section 130ZH
392 Broadcasting Services Act 1992
(c) if: (i) the relevant area is included in a terrestrial licence area;
and (ii) the relevant area is not included in a local market area;
and (iii) the simulcast period, or the simulcast-equivalent period,
as the case may be, for the terrestrial licence area ended before the commencement of this section;
the end of the 9-month period beginning when the simulcast period, or the simulcast-equivalent period, as the case may be, for the terrestrial licence area ended; or
(d) if: (i) the relevant area is included in a terrestrial licence area;
and (ii) the relevant area is not included in a local market area;
and (iii) the simulcast period, or the simulcast-equivalent period,
as the case may be, for the terrestrial licence area ends after the commencement of this section; and
the end of the 3-month period beginning when the simulcast period, or the simulcast-equivalent period, as the case may be, for the terrestrial licence area ends.
Revocation
(4) If: (a) a declaration is in force under subsection (1) in relation to a
particular area (the relevant area); and (b) the relevant area is included in a terrestrial licence area; and (c) the terrestrial licence area is wholly or partly included in the
licence area of a commercial television broadcasting licence allocated under section 38C; and
(d) the ACMA is not satisfied that the number of applicable terrestrial digital commercial television broadcasting services provided to persons in the relevant area is less than the number of commercial television broadcasting services provided under the section 38C licence;
the ACMA must, by legislative instrument, revoke the declaration.
Access to commercial television broadcasting services provided with the use of a satellite Part 9C
Section 130ZH
Broadcasting Services Act 1992 393
Certain satellite services to be disregarded
(5) For the purposes of subsections (1) and (4), disregard a commercial television broadcasting service provided under a section 38C licence if the service is authorised by paragraph 41CA(1)(g).
Definitions
(6) In this section:
digital-only local market area has the same meaning as in Schedule 4.
local market area has the same meaning as in Schedule 4.
number includes zero.
simulcast-equivalent period has the same meaning as in Schedule 4.
simulcast period has the same meaning as in Schedule 4.
terrestrial licence means a commercial television broadcasting licence other than a commercial television broadcasting licence allocated under section 38C or subsection 40(1).
terrestrial licence area means the licence area of a terrestrial licence. Note: For applicable terrestrial digital commercial television broadcasting
services, see section 130ZG.
Part 9D Captioning Division 1 Introduction
Section 130ZJ
394 Broadcasting Services Act 1992
Part 9D—Captioning
Division 1—Introduction
130ZJ Simplified outline
The following is a simplified outline of this Part:
• Broadcasters must comply with rules and standards relating to captioning of television programs for the deaf and hearing impaired.
130ZK Definitions
In this Part:
Category A subscription television general entertainment service has the meaning given by section 130ZW.
Category A subscription television movie service has the meaning given by section 130ZVA.
Category B subscription television general entertainment service has the meaning given by section 130ZW.
Category B subscription television movie service has the meaning given by section 130ZVA.
Category C subscription television general entertainment service has the meaning given by section 130ZW.
Category C subscription television movie service has the meaning given by section 130ZVA.
community service announcement means community information, or community promotional material, for the broadcast of which the commercial television broadcasting licensee, subscription television licensee or national broadcaster does not receive any consideration in cash or in kind.
Captioning Part 9D Introduction Division 1
Section 130ZK
Broadcasting Services Act 1992 395
coverage area has the same meaning as in Schedule 4.
designated viewing hours has the meaning given by section 130ZL.
emergency service agency means: (a) a police force or service; or (b) a fire service; or (c) a State Emergency Service of a State or a Territory; or (d) the Commonwealth Bureau of Meteorology; or (e) a body that runs an emergency service specified in the
regulations.
general entertainment program means a program other than: (a) a movie program; or (b) a news or current affairs program; or (c) a sports program; or (d) a music program.
HDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
HDTV multi-channelled national television broadcasting service has the same meaning as in Schedule 4.
movie program means a program that is: (a) a feature film; or (b) a short film; or (c) a telemovie.
music program means a program the sole or dominant purpose of which is to provide:
(a) music with video clips; or (b) video footage of musical performances;
or both.
national broadcasting service does not include a broadcasting service provided under the Parliamentary Proceedings Broadcasting Act 1946.
Part 9D Captioning Division 1 Introduction
Section 130ZK
396 Broadcasting Services Act 1992
national television broadcasting service means a national broadcasting service that provides television programs.
news or current affairs program means any of the following: (a) a news bulletin; (b) a program (whether presenter-based or not) whose sole or
dominant purpose is to provide analysis, commentary or discussion principally designed to inform the general community about social, economic or political issues of current relevance to the general community.
primary commercial television broadcasting service has the same meaning as in Schedule 4.
primary national television broadcasting service has the same meaning as in Schedule 4.
primary satellite national television broadcasting service has the same meaning as in Schedule 4.
program does not include: (a) advertising or sponsorship matter (whether or not of a
commercial kind); or (b) a community service announcement; or (c) an emergency warning.
satellite delivery area has the same meaning as in Schedule 4.
SDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
SDTV multi-channelled national television broadcasting service has the same meaning as in Schedule 4.
simulcast-equivalent period has the same meaning as in Schedule 4.
simulcast period has the same meaning as in Schedule 4.
sports program means: (a) a sports news bulletin; or
Captioning Part 9D Introduction Division 1
Section 130ZK
Broadcasting Services Act 1992 397
(b) a program the sole or dominant purpose of which is to provide:
(i) coverage of one or more sporting events; or (ii) analysis, commentary or discussion in relation to one or
more sporting events; or both.
subscription television general entertainment service means a subscription television service the program content of which consists wholly or primarily of general entertainment programs.
subscription television licensee means: (a) a subscription television broadcasting licensee; or (b) a subscription television narrowcasting licensee.
subscription television movie service means a subscription television service the program content of which consists wholly or primarily of movie programs.
subscription television music service means a subscription television service the program content of which consists wholly or primarily of music programs.
subscription television narrowcasting licensee means a person who provides a subscription television narrowcasting service under a class license.
subscription television news service means a subscription television service the program content of which consists wholly or primarily of news or current affairs programs.
subscription television service means: (a) a subscription television broadcasting service; or (b) a subscription television narrowcasting service.
subscription television sports service means a subscription television service the program content of which consists wholly or primarily of sports programs.
Part 9D Captioning Division 1 Introduction
Section 130ZL
398 Broadcasting Services Act 1992
130ZL Designated viewing hours
Programs transmitted before 1 July 2014
(1) For the purposes of the application of this Part to programs transmitted before 1 July 2014, designated viewing hours are the hours:
(a) beginning at 6 pm each day or, if another time is prescribed, beginning at that prescribed time each day; and
(b) ending at 10.30 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.
Programs transmitted on or after 1 July 2014
(2) For the purposes of the application of this Part to programs transmitted on or after 1 July 2014, designated viewing hours are the hours:
(a) beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and
(b) ending at midnight on the same day or, if another time is prescribed, ending at that prescribed time on the same day.
130ZM This Part does not apply to foreign language programs
(1) This Part does not apply to a television program that is wholly in a language other than English.
(2) For the purposes of subsection (1), disregard minor and infrequent uses of the English language.
130ZN This Part does not apply to programs that consist wholly of music
(1) This Part does not apply to a television program the audio component of which consists only of music that has no human vocal content that is recognisable as being in the English language.
(2) For the purposes of subsection (1), disregard minor and infrequent uses of the English language.
Captioning Part 9D Introduction Division 1
Section 130ZO
Broadcasting Services Act 1992 399
130ZO Captioning service provided for part of program
For the purposes of this Part, if: (a) a television program is transmitted on:
(i) a commercial television broadcasting service provided by a commercial television broadcasting licensee; or
(ii) a national television broadcasting service provided by a national broadcaster; or
(iii) a subscription television service provided by a subscription television licensee; and
(b) the audio component of the television program consists: (i) partly of human vocal content that is recognisable as
being in the English language; and (ii) partly of other content; and
(c) a captioning service is provided for the human vocal content covered by subparagraph (b)(i);
the licensee or the national broadcaster, as the case may be, is taken to have provided a captioning service for the program.
130ZP Multiple subscription television services provided by licensee
For the purposes of this Part, the subscription television services provided by a subscription television licensee are to be determined by reference to:
(a) all of the subscription television broadcasting licences (if any) under which the licensee provides services; and
(b) the class licence (if any) under which the licensee provides services.
130ZQ Television service provided in a period
(1) For the purposes of this Part, a commercial television broadcasting service is provided in a period (for example, a financial year) if the service is provided during the whole or a part of the period.
(2) For the purposes of this Part, a national television broadcasting service is provided in a period (for example, a financial year) if the service is provided during the whole or a part of the period.
Part 9D Captioning Division 1 Introduction
Section 130ZQ
400 Broadcasting Services Act 1992
(3) For the purposes of this Part, a subscription television service is provided in a period (for example, a financial year) if the service is provided during the whole or a part of the period.
Captioning Part 9D Captioning obligations of commercial television broadcasting licensees and national
broadcasters Division 2
Section 130ZR
Broadcasting Services Act 1992 401
Division 2—Captioning obligations of commercial television broadcasting licensees and national broadcasters
130ZR Captioning obligations—basic rule
Basic rule
(1) Each commercial television broadcasting licensee, and each national broadcaster, must provide a captioning service for:
(a) television programs transmitted during designated viewing hours; and
(b) television news or current affairs programs transmitted outside designated viewing hours.
Note: For compliance by licensees, see clause 7 of Schedule 2.
Exceptions
(2) Subsection (1) does not require the provision by a commercial television broadcasting licensee of a captioning service for a television program covered by paragraph 6(8)(d) of Schedule 4.
(3) Subsection (1) does not require the provision by a national broadcaster of a captioning service for a television program covered by paragraph 19(8)(d) of Schedule 4.
(4) If: (a) a commercial television broadcasting licence is in force; and (b) the licence was not allocated under section 38C; and (c) the licensee provides a core/primary commercial television
broadcasting service in the licence area; and (d) the licensee provides in the licence area another service that
is: (i) a SDTV multi-channelled commercial television
broadcasting service; or (ii) a HDTV multi-channelled commercial television
broadcasting service;
Part 9D Captioning Division 2 Captioning obligations of commercial television broadcasting licensees and national broadcasters
Section 130ZR
402 Broadcasting Services Act 1992
subsection (1) does not require the provision of a captioning service for a television program transmitted on:
(e) the SDTV multi-channelled commercial television broadcasting service mentioned in subparagraph (d)(i) of this subsection; or
(f) the HDTV multi-channelled commercial television broadcasting service mentioned in subparagraph (d)(ii) of this subsection;
unless the program has been previously transmitted on the core/primary commercial television broadcasting service.
(5) If: (a) a commercial television broadcasting licence is allocated
under section 38C; and (b) the licensee provides a primary commercial television
broadcasting service in the licence area; and (c) the licensee provides in the licence area:
(i) another SDTV multi-channelled commercial television broadcasting service; or
(ii) a HDTV multi-channelled commercial television broadcasting service;
subsection (1) does not require the provision of a captioning service for a television program transmitted on:
(d) the other SDTV multi-channelled commercial television broadcasting service; or
(e) the HDTV multi-channelled commercial television broadcasting service;
unless the program has been previously transmitted on the primary commercial television broadcasting service.
(6) If: (a) a national broadcaster provides a national television
broadcasting service in a coverage area; and (b) the service is not provided with the use of a satellite;
subsection (1) does not require the provision of a captioning service for a television program transmitted on:
Captioning Part 9D Captioning obligations of commercial television broadcasting licensees and national
broadcasters Division 2
Section 130ZR
Broadcasting Services Act 1992 403
(c) a SDTV multi-channelled national television broadcasting service provided by the national broadcaster otherwise than with the use of a satellite; or
(d) a HDTV multi-channelled national television broadcasting service provided by the national broadcaster otherwise than with the use of a satellite;
unless: (e) during the simulcast period, or the simulcast-equivalent
period, as the case may be, for the coverage area, the television program was previously transmitted by the national broadcaster on the national television broadcasting service that is:
(i) provided by the national broadcaster; and (ii) the service to which clause 19 of Schedule 4 applies; or
(f) after the end of the simulcast period, or the simulcast-equivalent period, as the case may be, for the coverage area, the television program was previously transmitted by the national broadcaster on the primary national television broadcasting service provided by the national broadcaster.
(7) If: (a) a national broadcaster provides a national television
broadcasting service in a satellite delivery area; and (b) the service is provided with the use of a satellite;
subsection (1) does not require the provision of a captioning service for a television program transmitted on:
(c) a SDTV multi-channelled national television broadcasting service provided by the national broadcaster with the use of a satellite; or
(d) a HDTV multi-channelled national television broadcasting service provided by the national broadcaster with the use of a satellite;
unless the television program has been previously transmitted by the national broadcaster on the broadcaster’s primary satellite national television broadcasting service.
(8) Subsection (1) does not require the provision of a captioning service:
Part 9D Captioning Division 2 Captioning obligations of commercial television broadcasting licensees and national broadcasters
Section 130ZS
404 Broadcasting Services Act 1992
(a) by the licensee of a commercial television broadcasting licence that was allocated under subsection 40(1); and
(b) during: (i) the first year of operation of the licence; or
(ii) if the ACMA, by written notice given to the licensee, allows a longer period—that longer period.
Note 1: For exemption orders, see section 130ZUA.
Note 2: For target reduction orders, see section 130ZUA.
130ZS Captioning obligations—special rules for multi-channelled services
Commercial television broadcasting licensee
(1) If: (a) a commercial television broadcasting licence is in force; and (b) the licence was not allocated under section 38C; and (c) the licensee transmits a television program on:
(i) a SDTV multi-channelled commercial television broadcasting service; or
(ii) a HDTV multi-channelled commercial television broadcasting service;
in the licence area; and (d) the program has been previously transmitted on another
commercial television broadcasting service provided by the licensee in the licence area; and
(e) the licensee provided a captioning service for the program when the program was so previously transmitted on the other service;
the licensee must provide a captioning service for the television program transmitted as mentioned in paragraph (c). Note: For compliance by licensees, see clause 7 of Schedule 2.
(2) If: (a) a commercial television broadcasting licence is allocated
under section 38C; and (b) the licensee transmits a television program on:
Captioning Part 9D Captioning obligations of commercial television broadcasting licensees and national
broadcasters Division 2
Section 130ZS
Broadcasting Services Act 1992 405
(i) a SDTV multi-channelled commercial television broadcasting service; or
(ii) a HDTV multi-channelled commercial television broadcasting service;
in the licence area; and (c) the program has been previously transmitted on another
commercial television broadcasting service provided by the licensee in the licence area; and
(d) the licensee provided a captioning service for the program when the program was so previously transmitted on the other service;
the licensee must provide a captioning service for the television program transmitted as mentioned in paragraph (b). Note: For compliance by licensees, see clause 7 of Schedule 2.
National broadcaster
(3) If: (a) a national broadcaster transmits a television program on:
(i) a SDTV multi-channelled national television broadcasting service; or
(ii) a HDTV multi-channelled national television broadcasting service;
in a coverage area; and (b) the program has been previously transmitted on another
national television broadcasting service provided by the national broadcaster in the coverage area; and
(c) the national broadcaster provided a captioning service for the program when the program was so previously transmitted on the other service;
the national broadcaster must provide a captioning service for the television program transmitted as mentioned in paragraph (a).
(4) Subsection (3) does not apply to a national television broadcasting service provided with the use of a satellite.
(5) If: (a) a national broadcaster transmits a television program on:
Part 9D Captioning Division 2 Captioning obligations of commercial television broadcasting licensees and national broadcasters
Section 130ZT
406 Broadcasting Services Act 1992
(i) a SDTV multi-channelled national television broadcasting service; or
(ii) a HDTV multi-channelled national television broadcasting service;
in a satellite delivery area; and (b) the service mentioned in paragraph (a) is provided with the
use of a satellite; and (c) the program has been previously transmitted on another
national television broadcasting service provided by the national broadcaster, with the use of a satellite, in the satellite delivery area; and
(d) the national broadcaster provided a captioning service for the program when the program was so previously transmitted on the other service;
the national broadcaster must provide a captioning service for the television program transmitted as mentioned in paragraph (a).
130ZT Annual captioning targets for 2012-13 and 2013-14— commercial television broadcasting licensees
(1) A commercial television broadcasting licensee must ensure that the percentage worked out using the following formula is not less than 90%:
where:
total hours of captioned programs transmitted during 2012-13 means the total number of hours of television programs:
(a) that were transmitted: (i) during targeted viewing hours in the financial year
beginning on 1 July 2012; and (ii) on the licensee’s core/primary commercial television
broadcasting service; and (b) for which a captioning service was provided.
Total hours of captioned programs transmitted during 2012-13 100 Total hours of programs transmitted during 2012-13
×
Captioning Part 9D Captioning obligations of commercial television broadcasting licensees and national
broadcasters Division 2
Section 130ZT
Broadcasting Services Act 1992 407
total hours of programs transmitted during 2012-13 means the total number of hours of television programs transmitted:
(a) during targeted viewing hours in the financial year beginning on 1 July 2012; and
(b) on the licensee’s core/primary commercial television broadcasting service.
Note: For compliance by licensees, see clause 7 of Schedule 2.
(2) A commercial television broadcasting licensee must ensure that the percentage worked out using the following formula is not less than 95%:
where:
total hours of captioned programs transmitted during 2013-14 means the total number of hours of television programs:
(a) that were transmitted: (i) during targeted viewing hours in the financial year
beginning on 1 July 2013; and (ii) on the licensee’s core/primary commercial television
broadcasting service; and (b) for which a captioning service was provided.
total hours of programs transmitted during 2013-14 means the total number of hours of television programs transmitted:
(a) during targeted viewing hours in the financial year beginning on 1 July 2013; and
(b) on the licensee’s core/primary commercial television broadcasting service.
Note: For compliance by licensees, see clause 7 of Schedule 2.
Exceptions
(3) This section does not apply to a television program that is transmitted:
(a) by the licensee of a commercial television broadcasting licence that was allocated under subsection 40(1); and
Total hours of captioned programs transmitted during 2013-14 100 Total hours of programs transmitted during 2013-14
×
Part 9D Captioning Division 2 Captioning obligations of commercial television broadcasting licensees and national broadcasters
Section 130ZU
408 Broadcasting Services Act 1992
(b) during: (i) the first year of operation of the licence; or
(ii) if the ACMA, by written notice given to the licensee, allows a longer period—that longer period.
(4) This section does not apply to a television program covered by paragraph 6(8)(d) of Schedule 4.
Targeted viewing hours
(5) For the purposes of this section, targeted viewing hours are the hours:
(a) beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and
(b) ending at midnight on the same day or, if another time is prescribed, ending at that prescribed time on the same day.
Note: For target reduction orders, see section 130ZUA.
130ZU Annual captioning targets for 2012-13 and 2013-14— national broadcasters
Services provided without the use of a satellite
(1) If a national broadcaster provides a core national broadcasting service in a coverage area, the national broadcaster must ensure that the percentage worked out using the following formula is not less than 90%:
where:
total hours of captioned programs transmitted during 2012-13 means the total number of hours of television programs:
(a) that were transmitted: (i) during targeted viewing hours in the financial year
beginning on 1 July 2012; and (ii) on the core national broadcasting service; and
(b) for which a captioning service was provided.
Total hours of captioned programs transmitted during 2012-13 100 Total hours of programs transmitted during 2012-13
×
Captioning Part 9D Captioning obligations of commercial television broadcasting licensees and national
broadcasters Division 2
Section 130ZU
Broadcasting Services Act 1992 409
total hours of programs transmitted during 2012-13 means the total number of hours of television programs transmitted:
(a) during targeted viewing hours in the financial year beginning on 1 July 2012; and
(b) on the core national broadcasting service.
(2) If a national broadcaster provides a core national broadcasting service in a coverage area, the national broadcaster must ensure that the percentage worked out using the following formula is not less than 95%:
where:
total hours of captioned programs transmitted during 2013-14 means the total number of hours of television programs:
(a) that were transmitted: (i) during targeted viewing hours in the financial year
beginning on 1 July 2013; and (ii) on the core national broadcasting service; and
(b) for which a captioning service was provided.
total hours of programs transmitted during 2013-14 means the total number of hours of television programs transmitted:
(a) during targeted viewing hours in the financial year beginning on 1 July 2013; and
(b) on the core national broadcasting service.
Services provided with the use of a satellite
(3) If a national broadcaster provides a primary satellite national television broadcasting service in a satellite delivery area, the national broadcaster must ensure that the percentage worked out using the following formula is not less than 90%:
where:
Total hours of captioned programs transmitted during 2013-14 100 Total hours of programs transmitted during 2013-14
×
Total hours of captioned programs transmitted during 2012-13 100 Total hours of programs transmitted during 2012-13
×
Part 9D Captioning Division 2 Captioning obligations of commercial television broadcasting licensees and national broadcasters
Section 130ZU
410 Broadcasting Services Act 1992
total hours of captioned programs transmitted during 2012-13 means the total number of hours of television programs:
(a) that were transmitted: (i) during targeted viewing hours in the financial year
beginning on 1 July 2012; and (ii) on the primary satellite national television broadcasting
service; and (b) for which a captioning service was provided.
total hours of programs transmitted during 2012-13 means the total number of hours of television programs transmitted:
(a) during targeted viewing hours in the financial year beginning on 1 July 2012; and
(b) on the primary satellite national television broadcasting service.
(4) If a national broadcaster provides a primary satellite national television broadcasting service in a satellite delivery area, the national broadcaster must ensure that the percentage worked out using the following formula is not less than 95%:
where:
total hours of captioned programs transmitted during 2013-14 means the total number of hours of television programs:
(a) that were transmitted: (i) during targeted viewing hours in the financial year
beginning on 1 July 2013; and (ii) on the primary satellite national television broadcasting
service; and (b) for which a captioning service was provided.
total hours of programs transmitted during 2013-14 means the total number of hours of television programs transmitted:
(a) during targeted viewing hours in the financial year beginning on 1 July 2013; and
Total hours of captioned programs transmitted during 2013-14 100 Total hours of programs transmitted during 2013-14
×
Captioning Part 9D Captioning obligations of commercial television broadcasting licensees and national
broadcasters Division 2
Section 130ZU
Broadcasting Services Act 1992 411
(b) on the primary satellite national television broadcasting service.
Exceptions
(5) This section does not apply to a television program covered by paragraph 19(8)(d) of Schedule 4.
Core national broadcasting service
(6) For the purposes of this section, if: (a) during the simulcast period, or the simulcast-equivalent
period, as the case may be, for a coverage area, a national broadcaster provides, in the coverage area, a national broadcasting service to which clause 19 of Schedule 4 applies—the service is the core national broadcasting service provided by the national broadcaster in the coverage area; and
(b) after the end of the simulcast period, or the simulcast-equivalent period, as the case may be, for a coverage area, a national broadcaster provides, in the coverage area, a primary national television broadcasting service—the service is the core national broadcasting service provided by the national broadcaster in the coverage area.
Targeted viewing hours
(7) For the purposes of this section, targeted viewing hours are the hours:
(a) beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and
(b) ending at midnight on the same day or, if another time is prescribed, ending at that prescribed time on the same day.
Note: For target reduction orders, see section 130ZUA.
Part 9D Captioning Division 2 Captioning obligations of commercial television broadcasting licensees and national broadcasters
Section 130ZUA
412 Broadcasting Services Act 1992
130ZUA Exemption orders and target reduction orders— unjustifiable hardship
Application
(1) A commercial television broadcasting licensee may apply to the ACMA for:
(a) an order (an exemption order) that exempts from subsection 130ZR(1) a specified commercial television broadcasting service provided by the licensee in a specified eligible period; or
(b) an order (a target reduction order) that: (i) is expressed to relate to a specified commercial
television broadcasting service provided by the licensee in a specified eligible period; and
(ii) for each financial year included in the eligible period, provides that a specified percentage is the reduced annual captioning target for the service for the financial year.
Note: For eligible period, see subsection (15).
(2) A national broadcaster may apply to the ACMA for: (a) an order (an exemption order) that exempts from
subsection 130ZR(1) a specified national television broadcasting service provided by the broadcaster in a specified eligible period; or
(b) an order (a target reduction order) that: (i) is expressed to relate to a specified national television
broadcasting service provided by the broadcaster in a specified eligible period; and
(ii) for each financial year included in the eligible period, provides that a specified percentage is the reduced annual captioning target for the service for the financial year.
Note: For eligible period, see subsection (15).
(3) An application under subsection (1) or (2) must: (a) be in writing; and
Captioning Part 9D Captioning obligations of commercial television broadcasting licensees and national
broadcasters Division 2
Section 130ZUA
Broadcasting Services Act 1992 413
(b) be in a form approved, in writing, by the ACMA; and (c) be made in:
(i) the financial year preceding the eligible period specified in the application; or
(ii) the 180-day period beginning at the start of the eligible period specified in the application.
Decision on application
(4) If an application under subsection (1) or (2) has been made for an exemption order or target reduction order, the ACMA must, after considering the application:
(a) by writing, make the exemption order or target reduction order, as the case may be; or
(b) refuse to make the exemption order or target reduction order, as the case may be.
Criteria for making exemption order or target reduction order
(5) The ACMA must not make the exemption order or target reduction order unless the ACMA is satisfied that a refusal to make the exemption order or target reduction order, as the case may be, would impose an unjustifiable hardship on the applicant.
(6) In determining whether a failure to make the exemption order or target reduction order, as the case may be, would impose an unjustifiable hardship on the applicant, the ACMA must have regard to the following matters:
(a) the nature of the detriment likely to be suffered by the applicant;
(b) the impact of making the exemption order or target reduction order, as the case may be, on deaf or hearing impaired viewers, or potential viewers, of the commercial television broadcasting service or national television broadcasting service concerned;
(c) the financial circumstances of the applicant; (d) the estimated amount of expenditure that the applicant would
be required to make if there was a failure to make the
Part 9D Captioning Division 2 Captioning obligations of commercial television broadcasting licensees and national broadcasters
Section 130ZUA
414 Broadcasting Services Act 1992
exemption order or target reduction order, as the case may be;
(e) the extent to which captioning services are provided by the applicant for television programs transmitted on commercial television broadcasting services or national television broadcasting services provided by the applicant;
(f) the likely impact of a failure to make the exemption order or target reduction order, as the case may be, on the quantity and quality of television programs transmitted on commercial television broadcasting services or national television broadcasting services provided by the applicant;
(g) whether the applicant has applied, or has proposed to apply, for exemption orders or target reduction orders under this section in relation to any other commercial television broadcasting services or national television broadcasting services provided by the applicant;
(h) such other matters (if any) as the ACMA considers relevant.
Consultation
(7) Before making an exemption order, or a target reduction order, under subsection (4), the ACMA must:
(a) within 50 days after receiving the application for the exemption order or target reduction order, as the case may be, publish on the ACMA’s website a notice:
(i) setting out the draft exemption order or draft target reduction order, as the case may be; and
(ii) inviting persons to make submissions to the ACMA about the draft exemption order or draft target reduction order, as the case may be, within 30 days after the notice is published; and
(b) consider any submissions received within the 30-day period mentioned in subparagraph (a)(ii).
Commencement of exemption order or target reduction order
(8) An exemption order, or a target reduction order, under subsection (4) comes into force at the start of the eligible period to
Captioning Part 9D Captioning obligations of commercial television broadcasting licensees and national
broadcasters Division 2
Section 130ZUA
Broadcasting Services Act 1992 415
which the exemption order or target reduction order, as the case may be, relates.
Refusal to make exemption order or target reduction order
(9) If: (a) an application under subsection (1) or (2) has been made for
an exemption order or target reduction order; and (b) the ACMA does not make a decision on the application
within the period of 90 days beginning at the start of the day on which the ACMA received the application;
the ACMA is taken, at the end of that 90-day period, to have decided to refuse to make the exemption order or target reduction order, as the case may be.
(10) If: (a) an application under subsection (1) or (2) has been made for
an exemption order or target reduction order; and (b) the ACMA decides to refuse to make the exemption order or
target reduction order, as the case may be; the ACMA must give written notice of the decision to the applicant.
Publication requirement
(11) If the ACMA makes an exemption order or target reduction order under subsection (4), the ACMA must publish a copy of the order on the ACMA’s website.
Order is not a legislative instrument
(12) An exemption order, or a target reduction order, under subsection (4) is not a legislative instrument.
Target reduction order may specify different percentages for different years
(13) A target reduction order under subsection (4) may specify different percentages for different financial years.
Part 9D Captioning Division 2 Captioning obligations of commercial television broadcasting licensees and national broadcasters
Section 130ZUAA
416 Broadcasting Services Act 1992
Specification of national television broadcasting services
(14) For the purposes of this section, a national television broadcasting service may be specified by reference to:
(a) whether or not the service is provided with the use of a satellite; and
(b) the coverage area, or the satellite delivery area, in which the service is provided.
Definitions
(15) In this section:
commercial television broadcasting service includes a proposed commercial television broadcasting service.
eligible period means: (a) a financial year; or (b) 2 consecutive financial years; or (c) 3 consecutive financial years; or (d) 4 consecutive financial years; or (e) 5 consecutive financial years.
national television broadcasting service includes a proposed national television broadcasting service.
130ZUAA Effect of target reduction order
Scope
(1) This section applies if a target reduction order under section 130ZUA is applicable to:
(a) a commercial television broadcasting service; or (b) a national television broadcasting service;
for a financial year.
Commercial television broadcasting service
(2) If the service is a commercial television broadcasting service provided by a commercial television broadcasting licensee, the
Captioning Part 9D Captioning obligations of commercial television broadcasting licensees and national
broadcasters Division 2
Section 130ZUAA
Broadcasting Services Act 1992 417
licensee must ensure that the percentage worked out using the following formula is not less than the reduced annual captioning target for the service for the financial year:
where:
total hours of captioned programs transmitted during the financial year means the total number of hours of television programs:
(a) that were transmitted: (i) during targeted viewing hours in the financial year; and
(ii) on the service; and (b) for which a captioning service was provided.
total hours of programs transmitted during the financial year means the total number of hours of television programs transmitted:
(a) during targeted viewing hours in the financial year; and (b) on the service.
National television broadcasting service
(3) If the service is a national television broadcasting service provided by a national broadcaster, the national broadcaster must ensure that the percentage worked out using the following formula is not less than the reduced annual captioning target for the service for the financial year:
where:
Total hours of captioned programs transmitted during the financial year 100
Total hours of programs transmitted during the financial year
×
Total hours of captioned programs transmitted during the financial year 100
Total hours of programs transmitted during the financial year
×
Part 9D Captioning Division 2 Captioning obligations of commercial television broadcasting licensees and national broadcasters
Section 130ZUAA
418 Broadcasting Services Act 1992
total hours of captioned programs transmitted during the financial year means the total number of hours of television programs:
(a) that were transmitted: (i) during targeted viewing hours in the financial year; and
(ii) on the service; and (b) for which a captioning service was provided.
total hours of programs transmitted during the financial year means the total number of hours of television programs transmitted:
(a) during targeted viewing hours in the financial year; and (b) on the service.
Standard captioning rule does not apply
(4) Subsection 130ZR(1) does not apply to the service for the financial year.
Standard target provisions do not apply
(5) If: (a) the service is a commercial television broadcasting service;
and (b) the financial year is:
(i) the financial year beginning on 1 July 2012; or (ii) the financial year beginning on 1 July 2013;
section 130ZT does not apply to the service for the financial year.
(6) If: (a) the service is a national television broadcasting service; and (b) the financial year is:
(i) the financial year beginning on 1 July 2012; or (ii) the financial year beginning on 1 July 2013;
section 130ZU does not apply to the service for the financial year.
Captioning Part 9D Captioning obligations of commercial television broadcasting licensees and national
broadcasters Division 2
Section 130ZUB
Broadcasting Services Act 1992 419
Targeted viewing hours
(7) For the purposes of this section, targeted viewing hours are the hours:
(a) beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and
(b) ending at midnight on the same day or, if another time is prescribed, ending at that prescribed time on the same day.
130ZUB Certain breaches to be disregarded
(1) If: (a) apart from this subsection, a commercial television
broadcasting licensee has breached a provision of this Division; and
(b) the breach is attributable to significant difficulties of a technical or engineering nature for the licensee; and
(c) those difficulties could not reasonably have been foreseen by the licensee;
then the breach is to be disregarded in determining whether the licensee has complied with the provision.
(2) If: (a) apart from this subsection, a national broadcaster has
breached a provision of this Division; and (b) the breach is attributable to significant difficulties of a
technical or engineering nature for the broadcaster; and (c) those difficulties could not reasonably have been foreseen by
the broadcaster; then the breach is to be disregarded in determining whether the broadcaster has complied with the provision.
Part 9D Captioning Division 3 Captioning obligations of subscription television licensees
Section 130ZV
420 Broadcasting Services Act 1992
Division 3—Captioning obligations of subscription television licensees
130ZV Annual captioning targets—subscription television licensees
Annual captioning targets
(1) If a subscription television licensee provides a subscription television service in:
(a) the financial year beginning on 1 July 2012; or (b) a later financial year;
the licensee must ensure that the percentage worked out using the following formula is not less than the annual captioning target for the service for the financial year:
where:
total hours of captioned programs transmitted on the service during the financial year means the total number of hours of television programs:
(a) that were transmitted on the service during the financial year; and
(b) for which a captioning service was provided.
total hours of programs transmitted on the service during the financial year means the total number of hours of television programs transmitted on the service during the financial year.
(2) For the purposes of this section, the annual captioning target for a subscription television service for a financial year is:
(a) in the case of the financial year beginning on 1 July 2012— the applicable percentage set out in the following table; or
(b) in the case of the financial year beginning on 1 July 2013— the applicable percentage set out in the following table; or
Total hours of captioned programs transmitted on the service during the financial year 100
Total hours of programs transmitted on the service during the financial year
×
Captioning Part 9D Captioning obligations of subscription television licensees Division 3
Section 130ZV
Broadcasting Services Act 1992 421
(c) in the case of the financial year beginning on 1 July 2014— the applicable percentage set out in the following table; or
(d) in the case of a later financial year—whichever is the lesser of the following percentages:
(i) the percentage worked out using the formula in subsection (3);
(ii) 100%.
Annual captioning targets Item Service Percentage for
the financial year beginning on 1 July 2012
Percentage for the financial year beginning on 1 July 2013
Percentage for the financial year beginning on 1 July 2014
1 Category A subscription television movie service
60% 70% 75%
2 Category B subscription television movie service
40% 50% 55%
3 Category C subscription television movie service
30% 40% 45%
4 Category A subscription television general entertainment service
40% 50% 55%
5 Category B subscription television general entertainment service
30% 40% 45%
Part 9D Captioning Division 3 Captioning obligations of subscription television licensees
Section 130ZV
422 Broadcasting Services Act 1992
Annual captioning targets Item Service Percentage for
the financial year beginning on 1 July 2012
Percentage for the financial year beginning on 1 July 2013
Percentage for the financial year beginning on 1 July 2014
6 Category C subscription television general entertainment service
15% 20% 25%
7 Subscription television news service
10% 12.5% 15%
8 Subscription television sports service
10% 12.5% 15%
9 Subscription television music service
5% 5% 5%
(3) The formula is as follows:
(4) If the percentage worked out using the formula in subsection (3) is not a multiple of 5%, the percentage is to be rounded up to the nearest multiple of 5%.
Exclusion of time-shifting services and high definition services
(5) This section does not apply to a subscription television service provided by a subscription television licensee if the service does no more than:
(a) transmit the same stream of programs that has been previously transmitted on another subscription television service provided by the licensee; or
(b) simultaneously transmit, in a high definition format, the same stream of programs that is transmitted, in a standard
Annual captioning target for the subscription television service1.05 for the previous financial year×
Captioning Part 9D Captioning obligations of subscription television licensees Division 3
Section 130ZVA
Broadcasting Services Act 1992 423
definition format, on another subscription television service provided by the licensee.
Note 1: For exemption orders, see section 130ZYA.
Note 2: For target reduction orders, see section 130ZYA.
130ZVA Categories for subscription television movie services
(1) For the purposes of this Part, if a subscription television licensee provides at least one, but fewer than 7, subscription television movie services in a financial year, those services are Category A subscription television movie services for the financial year.
(2) For the purposes of this Part, if a subscription television licensee provides more than 6, but fewer than 8, subscription television movie services in a financial year:
(a) if the licensee, by written notice given to the ACMA before the end of the financial year, nominates 6 of those services to be Category A subscription television movie services for the financial year:
(i) the nominated services are Category A subscription television movie services for the financial year; and
(ii) the remaining service is a Category B subscription television movie service for the financial year; or
(b) otherwise—each of those services is a Category A subscription television movie service for the financial year.
(3) For the purposes of this Part, if a subscription television licensee provides more than 7 subscription television movie services in a financial year:
(a) if the licensee, by written notice given to the ACMA before the end of the financial year, nominates:
(i) 6 of those services to be Category A subscription television movie services for the financial year; and
(ii) one of those services (other than services nominated under subparagraph (i)) to be a Category B subscription television movie service for the financial year;
then:
Part 9D Captioning Division 3 Captioning obligations of subscription television licensees
Section 130ZW
424 Broadcasting Services Act 1992
(iii) the services nominated under subparagraph (i) are Category A subscription television movie services for the financial year; and
(iv) the service nominated under subparagraph (ii) is a Category B subscription television movie service for the financial year; and
(v) the remainder of those services are Category C subscription television movie services for the financial year; or
(b) otherwise—each of those services is a Category A subscription television movie service for the financial year.
Exclusion of time-shifting services and high definition services
(4) This section does not apply to a subscription television service provided by a subscription television licensee if the service does no more than:
(a) transmit the same stream of programs that has been previously transmitted on another subscription television service provided by the licensee; or
(b) simultaneously transmit, in a high definition format, the same stream of programs that is transmitted, in a standard definition format, on another subscription television service provided by the licensee.
130ZW Categories for subscription television general entertainment services
(1) For the purposes of this Part, if a subscription television licensee provides at least one, but fewer than 19, subscription television general entertainment services in a financial year, those services are Category A subscription television general entertainment services for the financial year.
(2) For the purposes of this Part, if a subscription television licensee provides more than 18, but fewer than 35, subscription television general entertainment services in a financial year:
(a) if the licensee, by written notice given to the ACMA before the end of the financial year, nominates 18 of those services
Captioning Part 9D Captioning obligations of subscription television licensees Division 3
Section 130ZW
Broadcasting Services Act 1992 425
to be Category A subscription television general entertainment services for the financial year:
(i) the nominated services are Category A subscription television general entertainment services for the financial year; and
(ii) the remainder of those services are Category B subscription television general entertainment services for the financial year; or
(b) otherwise—each of those services is a Category A subscription television general entertainment service for the financial year.
(3) For the purposes of this Part, if a subscription television licensee provides more than 34 subscription television general entertainment services in a financial year:
(a) if the licensee, by written notice given to the ACMA before the end of the financial year, nominates:
(i) 18 of those services to be Category A subscription television general entertainment services for the financial year; and
(ii) 16 of those services (other than services nominated under subparagraph (i)) to be Category B subscription television general entertainment services for the financial year;
then: (iii) the services nominated under subparagraph (i) are
Category A subscription television general entertainment services for the financial year; and
(iv) the services nominated under subparagraph (ii) are Category B subscription television general entertainment services for the financial year; and
(v) the remainder of those services are Category C subscription television general entertainment services for the financial year; or
(b) otherwise—each of those services is a Category A subscription television general entertainment service for the financial year.
Part 9D Captioning Division 3 Captioning obligations of subscription television licensees
Section 130ZX
426 Broadcasting Services Act 1992
Exclusion of time-shifting services and high definition services
(4) This section does not apply to a subscription television service provided by a subscription television licensee if the service does no more than:
(a) transmit the same stream of programs that has been previously transmitted on another subscription television service provided by the licensee; or
(b) simultaneously transmit, in a high definition format, the same stream of programs that is transmitted, in a standard definition format, on another subscription television service provided by the licensee.
130ZX Exemptions—certain subscription television services provided before 1 July 2022
Subscription television movie services
(1) If: (a) a subscription television licensee provides more than 11
subscription television movie services in a financial year beginning before 1 July 2022; and
(b) the licensee has complied with subsection 130ZV(1) in relation to at least 11 of those services for the financial year; and
(c) the licensee, by written notice given to the ACMA not later than 30 days after the end of the financial year, nominates one or more of the subscription television movie services that:
(i) are covered by paragraph (a); and (ii) are not covered by paragraph (b);
to be exempt services for the financial year; and (d) the total number of nominated services does not exceed the
number worked out using the formula in subsection (2); subsection 130ZV(1) does not apply, and is taken never to have applied, to programs transmitted on a nominated service during the financial year.
(2) The formula is:
Captioning Part 9D Captioning obligations of subscription television licensees Division 3
Section 130ZX
Broadcasting Services Act 1992 427
where:
exemption percentage means the exemption percentage for the financial year. Note: See subsection (11).
Subscription television general entertainment services
(3) If: (a) a subscription television licensee provides more than 43
subscription television general entertainment services in a financial year beginning before 1 July 2022; and
(b) the licensee has complied with subsection 130ZV(1) in relation to at least 43 of those services for the financial year; and
(c) the licensee, by written notice given to the ACMA not later than 30 days after the end of the financial year, nominates one or more of the subscription television general entertainment services that:
(i) are covered by paragraph (a); and (ii) are not covered by paragraph (b);
to be exempt services for the financial year; and (d) the total number of nominated services does not exceed the
number worked out using the formula in subsection (4); subsection 130ZV(1) does not apply, and is taken never to have applied, to programs transmitted on a nominated service during the financial year.
(4) The formula is:
where:
exemption percentage means the exemption percentage for the financial year.
Total number of the services 11 Exemption percentagecovered by paragraph (1)(a) − ×
Total number of the services 43 Exemption percentagecovered by paragraph (3)(a) − ×
Part 9D Captioning Division 3 Captioning obligations of subscription television licensees
Section 130ZX
428 Broadcasting Services Act 1992
Note: See subsection (11).
Subscription television news services
(5) If: (a) a subscription television licensee provides more than 3
subscription television news services in a financial year beginning before 1 July 2022; and
(b) the licensee has complied with subsection 130ZV(1) in relation to at least 3 of those services for the financial year; and
(c) the licensee, by written notice given to the ACMA not later than 30 days after the end of the financial year, nominates one or more of the subscription television news services that:
(i) are covered by paragraph (a); and (ii) are not covered by paragraph (b);
to be exempt services for the financial year; and (d) the total number of nominated services does not exceed the
number worked out using the formula in subsection (6); subsection 130ZV(1) does not apply, and is taken never to have applied, to programs transmitted on a nominated service during the financial year.
(6) The formula is:
where:
exemption percentage means the exemption percentage for the financial year. Note: See subsection (11).
Subscription television sports services
(7) If: (a) a subscription television licensee provides more than 7
subscription television sports services in a financial year beginning before 1 July 2022; and
Total number of the services 3 Exemption percentagecovered by paragraph (5)(a) − ×
Captioning Part 9D Captioning obligations of subscription television licensees Division 3
Section 130ZX
Broadcasting Services Act 1992 429
(b) the licensee has complied with subsection 130ZV(1) in relation to at least 7 of those services for the financial year; and
(c) the licensee, by written notice given to the ACMA not later than 30 days after the end of the financial year, nominates one or more of the subscription television sports services that:
(i) are covered by paragraph (a); and (ii) are not covered by paragraph (b);
to be exempt services for the financial year; and (d) the total number of nominated services does not exceed the
number worked out using the formula in subsection (8); subsection 130ZV(1) does not apply, and is taken never to have applied, to programs transmitted on a nominated service during the financial year.
(8) The formula is:
where:
exemption percentage means the exemption percentage for the financial year. Note: See subsection (11).
Subscription television music services
(9) If: (a) a subscription television licensee provides more than 6
subscription television music services in a financial year beginning before 1 July 2022; and
(b) the licensee has complied with subsection 130ZV(1) in relation to at least 6 of those services for the financial year; and
(c) the licensee, by written notice given to the ACMA not later than 30 days after the end of the financial year, nominates one or more of the subscription television music services that:
Total number of the services 7 Exemption percentagecovered by paragraph (7)(a) − ×
Part 9D Captioning Division 3 Captioning obligations of subscription television licensees
Section 130ZX
430 Broadcasting Services Act 1992
(i) are covered by paragraph (a); and (ii) are not covered by paragraph (b);
to be exempt services for the financial year; and (d) the total number of nominated services does not exceed the
number worked out using the formula in subsection (10); subsection 130ZV(1) does not apply, and is taken never to have applied, to programs transmitted on a nominated service during the financial year.
(10) The formula is:
where:
exemption percentage means the exemption percentage for the financial year.
Exemption percentage
(11) For the purposes of this section, the exemption percentage for a financial year is:
(a) in the case of the financial year beginning on 1 July 2012— 100%; or
(b) in the case of the financial year beginning on 1 July 2013— 100%; or
(c) in the case of the financial year beginning on 1 July 2014— 100%; or
(d) in the case of the financial year beginning on 1 July 2015— 80%; or
(e) in the case of the financial year beginning on 1 July 2016— 80%; or
(f) in the case of the financial year beginning on 1 July 2017— 60%; or
(g) in the case of the financial year beginning on 1 July 2018— 60%; or
(h) in the case of the financial year beginning on 1 July 2019— 40%; or
Total number of the services 6 Exemption percentagecovered by paragraph (9)(a) − ×
Captioning Part 9D Captioning obligations of subscription television licensees Division 3
Section 130ZY
Broadcasting Services Act 1992 431
(i) in the case of the financial year beginning on 1 July 2020— 40%; or
(j) in the case of the financial year beginning on 1 July 2021— 20%.
Rounding
(12) If the number worked out using the formula in subsection (2), (4), (6), (8) or (10) is not a whole number, the number is to be rounded up to the nearest whole number.
Exclusion of time-shifting services and high definition services
(13) This section does not apply to a subscription television service provided by a subscription television licensee if the service does no more than:
(a) transmit the same stream of programs that has been previously transmitted on another subscription television service provided by the licensee; or
(b) simultaneously transmit, in a high definition format, the same stream of programs that is transmitted, in a standard definition format, on another subscription television service provided by the licensee.
130ZY Exemption orders and target reduction orders—unjustifiable hardship
Application
(1) A subscription television licensee may apply to the ACMA for: (a) an order (an exemption order) that exempts from
subsection 130ZV(1) a specified subscription television service provided by the licensee in a specified eligible period; or
(b) an order (a target reduction order) that: (i) is expressed to relate to a specified subscription
television service provided by the licensee in a specified eligible period; and
Part 9D Captioning Division 3 Captioning obligations of subscription television licensees
Section 130ZY
432 Broadcasting Services Act 1992
(ii) for each financial year included in the eligible period, provides that a specified percentage is the reduced annual captioning target for the service for the financial year.
Note: For eligible period, see subsection (13).
(2) An application must: (a) be in writing; and (b) be in a form approved, in writing, by the ACMA; and (c) be made in:
(i) the financial year preceding the eligible period specified in the application; or
(ii) the 180-day period beginning at the start of the eligible period specified in the application.
Decision on application
(3) If an application under subsection (1) has been made for an exemption order or target reduction order, the ACMA must, after considering the application:
(a) by writing, make the exemption order or target reduction order, as the case may be; or
(b) refuse to make the exemption order or target reduction order, as the case may be.
Criteria for making exemption order or target reduction order
(4) The ACMA must not make the exemption order or target reduction order unless the ACMA is satisfied that a refusal to make the exemption order or target reduction order, as the case may be, would impose an unjustifiable hardship on the applicant.
(5) In determining whether a failure to make the exemption order or target reduction order, as the case may be, would impose an unjustifiable hardship on the applicant, the ACMA must have regard to the following matters:
(a) the nature of the detriment likely to be suffered by the applicant;
Captioning Part 9D Captioning obligations of subscription television licensees Division 3
Section 130ZY
Broadcasting Services Act 1992 433
(b) the impact of making the exemption order or target reduction order, as the case may be, on deaf or hearing impaired viewers, or potential viewers, of the subscription television service concerned;
(c) the number of people who subscribe to the subscription television service concerned;
(d) the financial circumstances of the applicant; (e) the estimated amount of expenditure that the applicant would
be required to make if there was a failure to make the exemption order or target reduction order, as the case may be;
(f) the extent to which captioning services are provided by the applicant for television programs transmitted on subscription television services provided by the applicant;
(g) the likely impact of a failure to make the exemption order or target reduction order, as the case may be, on the quantity and quality of television programs transmitted on subscription television services provided by the applicant;
(h) whether the applicant has applied, or has proposed to apply, for exemption orders or target reduction orders under this section in relation to any other subscription television services provided by the applicant;
(i) such other matters (if any) as the ACMA considers relevant.
Consultation
(6) Before making an exemption order, or a target reduction order, under subsection (3), the ACMA must:
(a) within 50 days after receiving the application for the exemption order or target reduction order, as the case may be, publish on the ACMA’s website a notice:
(i) setting out the draft exemption order or draft target reduction order, as the case may be; and
(ii) inviting persons to make submissions to the ACMA about the draft exemption order or draft target reduction order, as the case may be, within 30 days after the notice is published; and
Part 9D Captioning Division 3 Captioning obligations of subscription television licensees
Section 130ZY
434 Broadcasting Services Act 1992
(b) consider any submissions received within the 30-day period mentioned in subparagraph (a)(ii).
Commencement of exemption order or target reduction order
(7) An exemption order, or a target reduction order, under subsection (3) comes into force at the start of the eligible period to which the exemption order or target reduction order, as the case may be, relates.
Refusal to make exemption order or target reduction order
(8) If: (a) an application under subsection (1) has been made for an
exemption order or target reduction order; and (b) the ACMA does not make a decision on the application
within the period of 90 days beginning at the start of the day on which the ACMA received the application;
the ACMA is taken, at the end of that 90-day period, to have decided to refuse to make the exemption order or target reduction order, as the case may be.
(9) If: (a) an application under subsection (1) has been made for an
exemption order or target reduction order; and (b) the ACMA decides to refuse to make the exemption order or
target reduction order, as the case may be; the ACMA must give written notice of the decision to the applicant.
Publication requirement
(10) If the ACMA makes an exemption order or target reduction order under subsection (3), the ACMA must publish a copy of the order on the ACMA’s website.
Order is not a legislative instrument
(11) An exemption order, or a target reduction order, under subsection (3) is not a legislative instrument.
Captioning Part 9D Captioning obligations of subscription television licensees Division 3
Section 130ZYA
Broadcasting Services Act 1992 435
Target reduction order may specify different percentages for different years
(12) A target reduction order under subsection (3) may specify different percentages for different financial years.
Definitions
(13) In this section:
eligible period means: (a) a financial year; or (b) 2 consecutive financial years; or (c) 3 consecutive financial years; or (d) 4 consecutive financial years; or (e) 5 consecutive financial years.
subscription television service includes a proposed subscription television service.
130ZYA Effect of target reduction order
Scope
(1) This section applies if a target reduction order under section 130ZY is applicable to a subscription television service for a financial year.
Subscription television broadcasting service
(2) The subscription television licensee who provides the service must ensure that the percentage worked out using the following formula is not less than the reduced annual captioning target for the service for the financial year:
where:
Total hours of captioned programs transmitted on the service during the financial year 100
Total hours of programs transmitted on the service during the financial year
×
Part 9D Captioning Division 3 Captioning obligations of subscription television licensees
Section 130ZZ
436 Broadcasting Services Act 1992
total hours of captioned programs transmitted on the service during the financial year means the total number of hours of television programs:
(a) that were transmitted on the service during the financial year; and
(b) for which a captioning service was provided.
total hours of programs transmitted on the service during the financial year means the total number of hours of television programs transmitted on the service during the financial year.
Standard captioning targets do not apply
(3) Subsection 130ZV(1) does not apply to the service for the financial year.
130ZZ Captioning services for repeats of television programs
If: (a) a subscription television licensee transmits a television
program on a subscription television service; and (b) the program has been previously transmitted:
(i) on the same subscription television service; or (ii) on another subscription television service provided by
the licensee; and (c) the licensee provided a captioning service for the program
when the program was so previously transmitted; the licensee must provide a captioning service for the television program transmitted as mentioned in paragraph (a). Note 1: For compliance by subscription television broadcasting licensees, see
clause 10 of Schedule 2.
Note 2: For compliance by subscription television narrowcasting licensees, see clause 11 of Schedule 2.
130ZZAA Captioning services for simultaneously transmitted television programs
If:
Captioning Part 9D Captioning obligations of subscription television licensees Division 3
Section 130ZZAB
Broadcasting Services Act 1992 437
(a) a subscription television licensee transmits a television program on a subscription television service (the first service); and
(b) the program is simultaneously transmitted on another subscription television service (the second service) provided by the licensee; and
(c) the licensee provides a captioning service for the transmission of the program on the first service;
the licensee must provide a captioning service for the television program transmitted on the second service. Note 1: For compliance by subscription television broadcasting licensees, see
clause 10 of Schedule 2.
Note 2: For compliance by subscription television narrowcasting licensees, see clause 11 of Schedule 2.
130ZZAB Certain breaches to be disregarded
If: (a) apart from this section, a subscription television licensee has
breached a provision of this Division; and (b) the breach is attributable to significant difficulties of a
technical or engineering nature for the licensee; and (c) those difficulties could not reasonably have been foreseen by
the licensee; then the breach is to be disregarded in determining whether the licensee has complied with the provision.
Part 9D Captioning Division 4 Captioning standards
Section 130ZZA
438 Broadcasting Services Act 1992
Division 4—Captioning standards
130ZZA Captioning standards
(1) The ACMA may, by legislative instrument, determine standards that relate to:
(a) the quality of captioning services provided by commercial television broadcasting licensees for television programs; and
(b) the quality of captioning services provided by national broadcasters for television programs; and
(c) the quality of captioning services provided by subscription television broadcasting licensees for television programs; and
(d) the quality of captioning services provided by subscription television narrowcasting licensees for television programs.
(2) For the purposes of subsection (1), quality includes: (a) readability; and (b) comprehensibility; and (c) accuracy.
(3) Section 589 of the Telecommunications Act 1997 applies to standards determined under subsection (1) of this section in a corresponding way to the way in which it applies to an instrument under that Act.
Compliance
(4) A commercial television broadcasting licensee must comply with a standard determined under subsection (1). Note 1: For compliance by licensees, see clause 7 of Schedule 2.
Note 2: See also subsection 123(3E) (standards determined under subsection (1) of this section prevail over inconsistent codes of practice).
(5) A national broadcaster must comply with a standard determined under subsection (1).
(6) A subscription television broadcasting licensee must comply with a standard determined under subsection (1).
Captioning Part 9D Captioning standards Division 4
Section 130ZZA
Broadcasting Services Act 1992 439
Note 1: For compliance by licensees, see clause 10 of Schedule 2.
Note 2: See also subsection 123(3E) (standards determined under subsection (1) of this section prevail over inconsistent codes of practice).
(7) A subscription television narrowcasting licensee must comply with a standard determined under subsection (1). Note 1: For compliance by licensees, see clause 11 of Schedule 2.
Note 2: See also subsection 123(3E) (standards determined under subsection (1) of this section prevail over inconsistent codes of practice).
Timing
(8) The ACMA must take all reasonable steps to ensure that standards are in force under subsection (1) at all times after the end of the 12-month period that began at the commencement of this section.
Part 9D Captioning Division 5 Emergency warnings
Section 130ZZB
440 Broadcasting Services Act 1992
Division 5—Emergency warnings
130ZZB Emergency warnings
Commercial television broadcasting licensee
(1) If a commercial television broadcasting licensee, at the request of an emergency service agency, transmits an emergency warning on any of its commercial television broadcasting services, the licensee must:
(a) transmit the whole of the emergency warning in: (i) the form of text; and
(ii) the form of speech; and (b) if it is reasonably practicable to do so—provide a captioning
service for the emergency warning. Note: For compliance by licensees, see clause 7 of Schedule 2.
National broadcaster
(2) If a national broadcaster, at the request of an emergency service agency, transmits an emergency warning on any of its national television broadcasting services, the national broadcaster must:
(a) transmit the whole of the emergency warning in: (i) the form of text; and
(ii) the form of speech; and (b) if it is reasonably practicable to do so—provide a captioning
service for the emergency warning.
Subscription television licensee
(3) If a subscription television licensee, at the request of an emergency service agency, transmits an emergency warning on a subscription television service, the licensee must:
(a) transmit the whole of the emergency warning in: (i) the form of text; and
(ii) the form of speech; and
Captioning Part 9D Emergency warnings Division 5
Section 130ZZB
Broadcasting Services Act 1992 441
(b) if it is reasonably practicable to do so—provide a captioning service for the emergency warning.
Note 1: For compliance by subscription television broadcasting licensees, see clause 10 of Schedule 2.
Note 2: For compliance by subscription television narrowcasting licensees, see clause 11 of Schedule 2.
Part 9D Captioning Division 6 Reports and record-keeping
Section 130ZZC
442 Broadcasting Services Act 1992
Division 6—Reports and record-keeping
130ZZC Annual compliance reports
Commercial television broadcasting licensee
(1) A commercial television broadcasting licensee must, within 90 days after the end of each financial year, prepare and give to the ACMA a report relating to compliance by the licensee with Divisions 2, 4 and 5 during the financial year. Note: For compliance by licensees, see clause 7 of Schedule 2.
(2) A report under subsection (1) must: (a) be in a form approved, in writing, by the ACMA; and (b) set out such information as is required by the form.
National broadcasters
(3) A national broadcaster must, within 90 days after the end of each financial year, prepare and give to the ACMA a report relating to compliance by the national broadcaster with Divisions 2, 4 and 5 during the financial year.
(4) A report under subsection (3) must: (a) be in a form approved, in writing, by the ACMA; and (b) set out such information as is required by the form.
Subscription television licensee
(5) If a subscription television licensee is a body corporate, the licensee must, within 90 days after the end of each financial year, prepare and give to the ACMA a report relating to compliance by the licensee with Divisions 3, 4 and 5 during the financial year. Note 1: For compliance by subscription television broadcasting licensees, see
clause 10 of Schedule 2.
Note 2: For compliance by subscription television narrowcasting licensees, see clause 11 of Schedule 2.
(6) A report under subsection (5) must:
Captioning Part 9D Reports and record-keeping Division 6
Section 130ZZD
Broadcasting Services Act 1992 443
(a) be in a form approved, in writing, by the ACMA; and (b) set out such information as is required by the form.
Publication of copy of report
(7) The ACMA must publish on its website a copy of a report given to it under subsection (1), (3) or (5).
130ZZD Record-keeping
Commercial television broadcasting licensee
(1) A commercial television broadcasting licensee must: (a) cause compliance records for the licensee for each financial
year to be made in a form approved in writing by the ACMA; and
(b) retain the compliance records in its custody until the end of the period ending 90 days after its report under subsection 130ZZC(1) in relation to that financial year is given to the ACMA; and
(c) without charge, make available to the ACMA, on request, any compliance records made by the licensee under paragraph (a) that have been retained by the licensee (whether or not the licensee is, at the time of the request, under an obligation to retain the records).
Note: For compliance by licensees, see clause 7 of Schedule 2.
National broadcaster
(2) A national broadcaster must: (a) cause compliance records for the national broadcaster for
each financial year to be made in a form approved in writing by the ACMA; and
(b) retain the compliance records in its custody until the end of the period ending 90 days after its report under subsection 130ZZC(3) in relation to that financial year is given to the ACMA; and
(c) without charge, make available to the ACMA, on request, any compliance records made by the national broadcaster
Part 9D Captioning Division 6 Reports and record-keeping
Section 130ZZD
444 Broadcasting Services Act 1992
under paragraph (a) that have been retained by the national broadcaster (whether or not the national broadcaster is, at the time of the request, under an obligation to retain the records).
Subscription television licensee
(3) If a subscription television licensee is a body corporate, the licensee must:
(a) cause compliance records for the licensee for each financial year to be made in a form approved in writing by the ACMA; and
(b) retain the compliance records in its custody until the end of the period ending 90 days after its report under subsection 130ZZC(5) in relation to that financial year is given to the ACMA; and
(c) without charge, make available to the ACMA, on request, any compliance records made by the licensee under paragraph (a) that have been retained by the licensee (whether or not the licensee is, at the time of the request, under an obligation to retain the records).
Note 1: For compliance by subscription television broadcasting licensees, see clause 10 of Schedule 2.
Note 2: For compliance by subscription television narrowcasting licensees, see clause 11 of Schedule 2.
Compliance records
(4) For the purposes of this section: (a) compliance records for a commercial broadcasting licensee
or a national broadcaster, as the case may be, for a financial year, means records of such information as will enable compliance by the licensee or national broadcaster with Divisions 2, 4 and 5 during that financial year to be readily ascertained; and
(b) compliance records for a subscription television licensee for a financial year, means records of such information as will enable compliance by the licensee with Divisions 3, 4 and 5 during that financial year to be readily ascertained.
Captioning Part 9D Review of this Part etc. Division 7
Section 130ZZE
Broadcasting Services Act 1992 445
Division 7—Review of this Part etc.
130ZZE Review of this Part etc.
(1) Before 31 December 2015, the ACMA must conduct a review of the following matters:
(a) the operation of this Part; (b) whether this Part should be amended; (c) the operation of paragraph 7(1)(o) of Schedule 2; (d) whether paragraph 7(1)(o) of Schedule 2 should be amended; (e) the operation of paragraph 10(1)(eb) of Schedule 2; (f) whether paragraph 10(1)(eb) of Schedule 2 should be
amended; (g) the operation of paragraph 11(1)(bc) of Schedule 2; (h) whether paragraph 11(1)(bc) of Schedule 2 should be
amended.
Consultation
(2) In conducting the review, the ACMA must make provision for public consultation.
Report
(3) The ACMA must give the Minister a report of the review before 30 June 2016.
(4) The Minister must cause copies of a report under subsection (3) to be tabled in each House of the Parliament within 15 sittings days of that House after receiving the report.
Part 10 Remedies for breaches of licensing provisions Division 1 Offences for providing unlicensed services
Section 131
446 Broadcasting Services Act 1992
Part 10—Remedies for breaches of licensing provisions
Division 1—Offences for providing unlicensed services
131 Prohibition on providing a commercial television broadcasting service without a licence
A person must not provide a commercial television broadcasting service unless the person has a licence to provide that service.
Penalty: 20,000 penalty units.
132 Prohibition on providing a subscription television broadcasting service without a licence
A person must not provide a subscription television broadcasting service unless the person has a licence to provide that service.
Penalty: 2,000 penalty units.
133 Prohibition on providing a commercial radio broadcasting service without a licence
A person must not provide a commercial radio broadcasting service unless the person has a licence to provide that service.
Penalty: 2,000 penalty units.
134 Prohibition on providing a community television broadcasting service without a licence
A person must not provide a community television broadcasting service with the use of the broadcasting services bands unless the person has a licence to provide that service.
Penalty: 500 penalty units.
Remedies for breaches of licensing provisions Part 10 Offences for providing unlicensed services Division 1
Section 135
Broadcasting Services Act 1992 447
135 Prohibition on providing a community radio broadcasting service without a licence
A person must not provide a community radio broadcasting service with the use of the broadcasting services bands unless the person has a licence to provide that service.
Penalty: 50 penalty units.
136 Continuing offences
A person who breaches a provision of this Division is guilty of a separate offence in respect of each day (including a day of a conviction under this section or any subsequent day) during which the breach continues.
Part 10 Remedies for breaches of licensing provisions Division 1A Civil penalty provisions relating to unlicensed services
Section 136A
448 Broadcasting Services Act 1992
Division 1A—Civil penalty provisions relating to unlicensed services
136A Prohibition on providing a commercial television broadcasting service without a licence
(1) A person must not provide a commercial television broadcasting service if the person does not have a licence to provide that service.
(2) Subsection (1) is a civil penalty provision.
136B Prohibition on providing a subscription television broadcasting service without a licence
(1) A person must not provide a subscription television broadcasting service if the person does not have a licence to provide that service.
(2) Subsection (1) is a civil penalty provision.
136C Prohibition on providing a commercial radio broadcasting service without a licence
(1) A person must not provide a commercial radio broadcasting service if the person does not have a licence to provide that service.
(2) Subsection (1) is a civil penalty provision.
136D Prohibition on providing a community television broadcasting service without a licence
(1) A person must not provide a community television broadcasting service with the use of the broadcasting services bands if the person does not have a licence to provide that service.
(2) Subsection (1) is a civil penalty provision.
Remedies for breaches of licensing provisions Part 10 Civil penalty provisions relating to unlicensed services Division 1A
Section 136E
Broadcasting Services Act 1992 449
136E Prohibition on providing a community radio broadcasting service without a licence
(1) A person must not provide a community radio broadcasting service with the use of the broadcasting services bands if the person does not have a licence to provide that service.
(2) Subsection (1) is a civil penalty provision.
136F Continuing breaches
A person who contravenes a provision of this Division commits a separate contravention of that provision in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
Part 10 Remedies for breaches of licensing provisions Division 2 Action by ACMA where a person provides a service without a licence
Section 137
450 Broadcasting Services Act 1992
Division 2—Action by ACMA where a person provides a service without a licence
137 Remedial directions—unlicensed services
If the ACMA is satisfied that a person has breached, or is breaching, section 136A, 136B, 136C, 136D or 136E, the ACMA may, by written notice given to the person, direct the person to take action directed towards ensuring that the person does not breach that section, or is unlikely to breach that section, in the future.
138 Breach of remedial direction—offences
(1) A person commits an offence if: (a) the person has been given a notice under section 137; and (b) the notice relates to a breach of section 136A; and (c) the person engages in conduct; and (d) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(2) A person commits an offence if: (a) the person has been given a notice under section 137; and (b) the notice relates to a breach of section 136B or 136C; and (c) the person engages in conduct; and (d) the person’s conduct contravenes a requirement in the notice.
Penalty: 2,000 penalty units.
(3) A person commits an offence if: (a) the person has been given a notice under section 137; and (b) the notice relates to a breach of section 136D or 136E; and (c) the person engages in conduct; and (d) the person’s conduct contravenes a requirement in the notice.
Penalty: 50 penalty units.
Remedies for breaches of licensing provisions Part 10 Action by ACMA where a person provides a service without a licence Division 2
Section 138A
Broadcasting Services Act 1992 451
(4) A person who contravenes subsection (1), (2) or (3) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
(5) In this section:
engage in conduct means: (a) do an act; or (b) omit to perform an act.
138A Breach of remedial direction—civil penalty provision
(1) A person must comply with a notice under section 137.
(2) Subsection (1) is a civil penalty provision.
(3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
Part 10 Remedies for breaches of licensing provisions Division 3 Action in relation to breaches by licensees
Section 139
452 Broadcasting Services Act 1992
Division 3—Action in relation to breaches by licensees
139 Offence for breach of conditions of licences and class licences
(1) A person is guilty of an offence if: (a) the person is a commercial television broadcasting licensee;
and (b) the person engages in conduct; and (c) the person’s conduct breaches a condition of the licence set
out in subclause 7(1) (other than paragraph 7(1)(ia)) of Schedule 2.
Penalty: 2,000 penalty units.
(1A) A person commits an offence if: (a) the person is a commercial television broadcasting licensee;
and (b) the person engages in conduct; and (c) the person’s conduct breaches the condition of the licence set
out in paragraph 7(1)(ia) of Schedule 2.
Penalty: 60 penalty units.
(1B) An offence against subsection (1A) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.
(1C) Subsection (1A) is a designated infringement notice provision.
(2) A person is guilty of an offence if: (a) the person is a subscription television broadcasting licensee;
and (b) the person engages in conduct; and (c) the person’s conduct breaches a condition of a subscription
television broadcasting licence set out in section 103P, 103Q, 103S, 103T, 103V, 103W, 103Y or 103Z, or in subclause 10(1) of Schedule 2.
Penalty: 1,000 penalty units.
Remedies for breaches of licensing provisions Part 10 Action in relation to breaches by licensees Division 3
Section 139
Broadcasting Services Act 1992 453
(3) A person is guilty of an offence if: (a) the person is a commercial radio broadcasting licensee; and (b) the person engages in conduct; and (c) the person’s conduct breaches a condition of the licence set
out in subclause 8(1) (other than paragraph 8(1)(ha)) of Schedule 2.
Penalty: 500 penalty units.
(3A) A person commits an offence if: (a) the person is a commercial radio broadcasting licensee; and (b) the person engages in conduct; and (c) the person’s conduct breaches the condition of the licence set
out in paragraph 8(1)(ha) of Schedule 2.
Penalty: 60 penalty units.
(3B) An offence against subsection (3A) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.
(3C) Subsection (3A) is a designated infringement notice provision.
(4) A person is guilty of an offence if: (a) the person is a community broadcasting licensee (other than a
temporary community broadcasting licensee); and (b) the person engages in conduct; and (c) the person’s conduct breaches a condition of the licence set
out in subclause 9(1) of Schedule 2.
Penalty: 50 penalty units.
(5) A person is guilty of an offence if: (a) the person is a temporary community broadcasting licensee;
and (b) the person engages in conduct; and (c) the person’s conduct breaches a condition of the licence set
out in subclause 9(1) (other than paragraph 9(1)(h)) of Schedule 2.
Penalty: 50 penalty units.
Part 10 Remedies for breaches of licensing provisions Division 3 Action in relation to breaches by licensees
Section 140
454 Broadcasting Services Act 1992
(6) A person is guilty of an offence if: (a) the person provides a subscription radio broadcasting service,
a subscription narrowcasting service or an open narrowcasting service; and
(b) the person engages in conduct; and (c) the person’s conduct breaches a condition set out in
subclause 11(1) of Schedule 2.
Penalty: 50 penalty units.
(7) In this section:
engage in conduct means: (a) do an act; or (b) omit to perform an act.
140 Continuing offences
A person who breaches section 139 is guilty of a separate offence in respect of each day (including a day of a conviction under this section or any subsequent day) during which the breach continues.
140A Civil penalty provisions relating to breach of conditions of licences and class licences
(1) A commercial television broadcasting licensee must not breach a condition of the licence set out in subclause 7(1) of Schedule 2.
(2) A subscription television broadcasting licensee must not breach a condition of a subscription television broadcasting licence set out in:
(a) section 103P, 103Q, 103S, 103T, 103V, 103W, 103Y or 103Z; or
(b) subclause 10(1) of Schedule 2.
(3) A commercial radio broadcasting licensee must not breach a condition of the licence set out in subclause 8(1) of Schedule 2.
(4) A community broadcasting licensee (other than a temporary community broadcasting licensee) must not breach a condition of the licence set out in subclause 9(1) of Schedule 2.
Remedies for breaches of licensing provisions Part 10 Action in relation to breaches by licensees Division 3
Section 141
Broadcasting Services Act 1992 455
(5) A temporary community broadcasting licensee must not breach a condition of the licence set out in subclause 9(1) (other than paragraph 9(1)(h)) of Schedule 2.
(6) A person who provides a subscription radio broadcasting service, a subscription narrowcasting service or an open narrowcasting service must not breach a condition set out in subclause 11(1) of Schedule 2.
Civil penalty
(7) Subsections (1), (2), (3), (4), (5) and (6) are civil penalty provisions.
Continuing breaches
(8) A person who contravenes a provision of this section commits a separate contravention of that provision in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
141 Remedial directions—licence conditions, class licences and codes of practice
Licence conditions relating to commercial, community or subscription services
(1) If the ACMA is satisfied that a person who is: (a) a commercial television broadcasting licensee; or (b) a commercial radio broadcasting licensee; or (c) a community broadcasting licensee; or (d) a subscription television broadcasting licensee;
has breached, or is breaching, a condition of the licence, the ACMA may, by written notice given to the person, direct the person to take action directed towards ensuring that the person does not breach that condition, or is unlikely to breach that condition, in the future.
Part 10 Remedies for breaches of licensing provisions Division 3 Action in relation to breaches by licensees
Section 141
456 Broadcasting Services Act 1992
(2) The following are examples of the kinds of direction that may be given to a person under subsection (1):
(a) a direction that the person implement effective administrative systems for monitoring compliance with a condition of the licence;
(b) a direction that the person implement a system designed to give the person’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a condition of the licence, in so far as those requirements affect the employees, agents or contractors concerned.
(3) If the ACMA is satisfied that a person who is in a position to exercise control of:
(a) a commercial television broadcasting licence; or (b) a commercial radio broadcasting licence;
has caused, or is causing, the licensee to breach a condition of the licence, the ACMA may, by written notice given to the person, direct the person to take action directed towards ensuring that the person does not cause the licensee to breach that condition, or is unlikely to cause the licensee to breach that condition, in the future.
Class licences
(4) If the ACMA is satisfied that a person who provides: (a) a subscription radio broadcasting service; or (b) a subscription narrowcasting service; or (c) an open narrowcasting service;
has breached, or is breaching, a condition of the relevant class licence, the ACMA may, by written notice given to the person, direct the person to take action directed towards ensuring that the person does not breach that condition, or is unlikely to breach that condition, in the future.
(5) The following are examples of the kinds of direction that may be given to a person under subsection (4):
(a) a direction that the person implement effective administrative systems for monitoring compliance with a condition of the relevant class licence;
Remedies for breaches of licensing provisions Part 10 Action in relation to breaches by licensees Division 3
Section 142
Broadcasting Services Act 1992 457
(b) a direction that the person implement a system designed to give the person’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a condition of the relevant class licence, in so far as those requirements affect the employees, agents or contractors concerned.
Codes of practice
(6) If the ACMA is satisfied that a person who provides: (a) a subscription radio broadcasting service; or (b) a subscription narrowcasting service; or (c) an open narrowcasting service;
has breached, or is breaching, a registered code of practice that applies to the service, the ACMA may, by written notice given to the person, direct the person to take action directed towards ensuring that the person does not breach that code of practice, or is unlikely to breach that code of practice, in the future.
(7) The following are examples of the kinds of direction that may be given to a person under subsection (6):
(a) a direction that the person implement effective administrative systems for monitoring compliance with a registered code of practice that applies to the service concerned;
(b) a direction that the person implement a system designed to give the person’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a registered code of practice that applies to the service concerned, in so far as those requirements affect the employees, agents or contractors concerned.
142 Breach of remedial direction—offences
(1) A person commits an offence if: (a) the person has been given a notice under section 141; and (b) the person is:
(i) a commercial television broadcasting licensee; or (ii) in a position to exercise control of a commercial
television broadcasting licence; and
Part 10 Remedies for breaches of licensing provisions Division 3 Action in relation to breaches by licensees
Section 142
458 Broadcasting Services Act 1992
(c) the person engages in conduct; and (d) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(2) A person commits an offence if: (a) a person has been given a notice under section 141; and (b) the person is a subscription television broadcasting licensee;
and (c) the person engages in conduct; and (d) the person’s conduct contravenes a requirement in the notice.
Penalty: 2,000 penalty units.
(3) A person commits an offence if: (a) the person has been given a notice under section 141; and (b) the person is:
(i) a commercial radio broadcasting licensee; or (ii) in a position to exercise control of a commercial radio
broadcasting licence; and (c) the person engages in conduct; and (d) the person’s conduct contravenes a requirement in the notice.
Penalty: 500 penalty units.
(4) A person commits an offence if: (a) the person has been given a notice under section 141; and (b) the person is not:
(i) a commercial television broadcasting licensee; or (ii) in a position to exercise control of a commercial
television broadcasting licence; or (iii) a subscription television broadcasting licensee; or (iv) a commercial radio broadcasting licensee; or (v) in a position to exercise control of a commercial radio
broadcasting licence; and (c) the person engages in conduct; and (d) the person’s conduct contravenes a requirement in the notice.
Penalty: 50 penalty units.
Remedies for breaches of licensing provisions Part 10 Action in relation to breaches by licensees Division 3
Section 142A
Broadcasting Services Act 1992 459
(5) A person who contravenes subsection (1), (2), (3) or (4) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
(6) In this section:
engage in conduct means: (a) do an act; or (b) omit to perform an act.
142A Breach of remedial direction—civil penalty provision
(1) A person must comply with a notice under section 141.
(2) Subsection (1) is a civil penalty provision.
(3) A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
143 Suspension and cancellation
(1) If a commercial television broadcasting licensee, a commercial radio broadcasting licensee, a subscription television broadcasting licensee or a community broadcasting licensee:
(a) fails to comply with a notice under section 141; or (b) breaches a condition of the licence;
the ACMA may, by notice in writing given to the person: (c) suspend the licence for such period, not exceeding 3 months,
as is specified in the notice; or (d) cancel the licence.
(1A) If: (a) a subscription television broadcasting licensee provides a
subscription TV drama service (within the meaning of Division 2A of Part 7); and
Part 10 Remedies for breaches of licensing provisions Division 3 Action in relation to breaches by licensees
Section 143
460 Broadcasting Services Act 1992
(b) the licence is suspended because of a breach of a condition set out in that Division;
the ACMA may take such action, by way of suspending one or more subscription television broadcasting licences held by:
(c) the licensee; or (d) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a substantially similar, service is not transmitted by the licensee or the related body corporate, as the case may be, during the period of suspension.
(1B) If: (a) a subscription television broadcasting licensee provides a
subscription TV drama service (within the meaning of Division 2A of Part 7); and
(b) the licence is cancelled because of a breach of a condition set out in that Division;
the ACMA may take such action, by way of cancelling one or more subscription television broadcasting licences held by:
(c) the licensee; or (d) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a substantially similar, service is not transmitted by the licensee or the related body corporate, as the case may be, at a time after the cancellation.
(2) If the ACMA proposes to take action under subsection (1), (1A) or (1B) the ACMA must give to the person:
(a) written notice of its intention; and (b) a reasonable opportunity to make representations to the
ACMA in relation to the proposed action.
(3) In this section:
related body corporate has the same meaning as in the Corporations Act 2001.
Remedies for breaches of licensing provisions Part 10 Action in relation to class licences Division 4
Section 144
Broadcasting Services Act 1992 461
Division 4—Action in relation to class licences
144 Application to Federal Court
(1) If the ACMA is satisfied that a person is providing subscription radio broadcasting services, subscription narrowcasting services or open narrowcasting services otherwise than in accordance with the relevant class licence, the ACMA may apply to the Federal Court for an order that the person cease providing those services.
(2) If the Federal Court is satisfied, on such an application, that the person is providing subscription radio broadcasting services, subscription narrowcasting services or open narrowcasting services otherwise than in accordance with the relevant class licence, the Federal Court may order the person to cease providing those services.
Part 10A Anti-hoarding rules Division 1 Introduction
Section 146A
462 Broadcasting Services Act 1992
Part 10A—Anti-hoarding rules
Division 1—Introduction
146A Simplified outline
The following is a simplified outline of this Part:
• This Part sets up a regime to discourage commercial television broadcasting licensees, program suppliers, the ABC and the SBS from hoarding rights to provide live television coverage of certain events or series of events.
• The Minister may make a disallowable instrument designating the events or series that are covered by this Part. The instrument must also specify an offer time for the event or series. The offer time must occur 30 days or more before the start of the event or series unless the Minister is satisfied that the offer time should occur closer to the start of the event or series.
• If a commercial television broadcasting licensee acquires a right to provide live television coverage of a designated event or series, but does not intend to televise the whole or a part of the event or series, the licensee must, before the offer time, offer to transfer the right to televise the whole or the part of the event or series, for a nominal charge, to the ABC and the SBS. The offer must remain open for acceptance for a minimum period of 7 days.
• If a commercial television broadcasting licensee’s program supplier is entitled to confer on the licensee a right to provide live television coverage of a designated event or series, but does not confer the right to televise the whole or a part of the event or series, the program supplier must, before the offer time, offer to transfer the right to televise the whole or the part of the event or series, for a nominal charge, to the ABC and the SBS. The offer must remain open for acceptance for a minimum period of 7 days.
Anti-hoarding rules Part 10A Introduction Division 1
Section 146B
Broadcasting Services Act 1992 463
• If the ABC acquires a right to provide live television coverage of a designated event or series, but does not intend to televise the whole or a part of the event or series, the ABC must, before the offer time, offer to transfer the right to televise the whole or the part of the event or series, for a nominal charge, to the SBS. The offer must remain open for acceptance for a minimum period of 7 days.
• If the SBS acquires a right to provide live television coverage of a designated event or series, but does not intend to televise the whole or a part of the event or series, the SBS must, before the offer time, offer to transfer the right to televise the whole or the part of the event or series, for a nominal charge, to the ABC. The offer must remain open for acceptance for a minimum period of 7 days.
146B Definitions
In this Part:
Central-Western time zone means: (a) the area consisting of:
(i) South Australia; and (ii) Broken Hill (within the meaning of the Standard Time
Act 1987 of New South Wales); or (b) Western Australia; or (c) the Northern Territory; or (d) the Territory of Christmas Island; or (e) the Territory of Cocos (Keeling) Islands.
commercial television broadcasting service means a commercial broadcasting service that provides television programs.
coverage area means an area that corresponds to a licence area.
designated event has the meaning given by section 146C.
designated series of events has the meaning given by section 146C.
Part 10A Anti-hoarding rules Division 1 Introduction
Section 146C
464 Broadcasting Services Act 1992
licence area means a licence area for a commercial television broadcasting licence.
live, in relation to the televising of an event, or series of events, has the meaning generally accepted within the television industry.
national television broadcasting service means a national broadcasting service that provides television programs.
offer time has the meaning given by section 146C.
program supplier has the meaning given by section 146D.
related body corporate has the same meaning as in the Corporations Act 2001.
supply, in relation to programs, includes confer rights to televise the programs.
televise means: (a) in relation to a commercial television broadcasting
licensee—televise on a commercial television broadcasting service provided by the licensee; or
(b) in relation to a national broadcaster—televise on a national television broadcasting service provided by the broadcaster.
146C Designated events and designated series of events
(1) The Minister may, by writing, declare that a specified event is a designated event for the purposes of this Part. Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(2) The Minister may, by writing, declare that a specified series of events is a designated series of events for the purposes of this Part. Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(3) To avoid doubt, the Minister may declare an event to be a designated event under subsection (1) even if the event is part of a series of events.
Anti-hoarding rules Part 10A Introduction Division 1
Section 146CA
Broadcasting Services Act 1992 465
(4) A declaration under subsection (1) or (2) must also provide that a time that:
(a) is ascertained in accordance with the declaration; and (b) occurs before the start of the event, or the series of events, as
the case may be; is the offer time in relation to the event or the series of events, as the case requires, for the purposes of this Part.
(5) The offer time in relation to an event or series of events must occur 30 days or more before the start of the event or the series of events, as the case may be, unless the Minister is satisfied that the offer time should occur closer to the start of the event or series of events, as the case requires.
(6) A declaration under this section has effect accordingly.
(7) A declaration under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
146CA When event or series is eligible for delayed televising in the Central-Western time zones
(1) The Minister may, by writing, determine that a specified designated event is eligible for delayed televising in the Central-Western time zones. Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(2) The Minister may, by writing, determine that a specified designated series of events is eligible for delayed televising in the Central-Western time zones. Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(3) To avoid doubt, the Minister may make a determination under subsection (1) even if the event concerned is part of a series of events.
(4) A determination under this section has effect only for the purposes of paragraphs 146KA(1)(b) and (2)(d) and 146R(1)(b) and (2)(d).
Part 10A Anti-hoarding rules Division 1 Introduction
Section 146D
466 Broadcasting Services Act 1992
(5) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(6) A copy of a determination under this section is to be published in the Gazette. Note: The following is an example of a situation in which the Minister might
make a determination under this section: in a case where a day-night cricket match begins at 2 pm in Sydney, delayed televising of the match in Perth would allow Perth viewers the same evening viewing time as viewers in Sydney.
146D Program suppliers
(1) This section sets out the 3 situations in which a person is a program supplier of a commercial television broadcasting licensee for the purposes of this Part.
Agreements
(2) A person is a program supplier of a commercial television broadcasting licensee for the purposes of this Part if:
(a) the person has an agreement to supply the licensee with programs that can be televised by the licensee; and
(b) the person supplies, or may reasonably be expected to supply, the licensee with at least two-thirds of:
(i) all the sporting programs that are, or are to be, televised by the licensee during the period when the agreement is in force; or
(ii) all the prescribed programs that are, or are to be, televised by the licensee during the period when the agreement is in force;
whether or not the programs are, or are to be, supplied under the agreement.
Related body corporate
(3) A person is a program supplier of a commercial television broadcasting licensee for the purposes of this Part if the person:
(a) is a related body corporate of the licensee; and (b) supplies, or proposes to supply, the licensee with any of:
Anti-hoarding rules Part 10A Introduction Division 1
Section 146D
Broadcasting Services Act 1992 467
(i) the sporting programs that are, or are to be, televised by the licensee; or
(ii) the prescribed programs that are, or are to be, televised by the licensee.
ACMA declaration
(4) If: (a) apart from this subsection, a person is not a program supplier
of a commercial television broadcasting licensee; and (b) the person supplies, or proposes to supply, the licensee with
any of: (i) the sporting programs that are, or are to be, televised by
the licensee; or (ii) the prescribed programs that are, or are to be, televised
by the licensee; and (c) having regard to the following matters, the ACMA is
satisfied that the person should be treated as a program supplier of the licensee:
(i) the purpose underlying this Part; (ii) whether the relationship between the person and the
licensee was entered into or maintained for the sole or dominant purpose of avoiding the application of any provision of this Part;
(iii) any other relevant matters; the ACMA may, by writing, declare that the person is a program supplier of the licensee for the purposes of this Part.
(5) A declaration under subsection (4) has effect accordingly.
(6) The ACMA must arrange for a copy of a declaration under subsection (4) to be:
(a) given to the person and licensee concerned; and (b) published in the Gazette.
Part 10A Anti-hoarding rules Division 2 Commercial television broadcasting licensees
Section 146E
468 Broadcasting Services Act 1992
Division 2—Commercial television broadcasting licensees
146E Anti-hoarding rule—licensees
(1) A commercial television broadcasting licensee contravenes the anti-hoarding rule if:
(a) the licensee has a right to televise live, in the licence area for the licence, the whole of a designated event or the whole of a designated series of events; and
(b) the licensee acquired the right when the event was a designated event, or the series was a designated series of events, as the case may be; and
(c) either: (i) the licensee did not televise live in that area any part of
the event or series; or (ii) the licensee televised live in that area some, but not all,
of the event or series; and (d) neither the licensee nor the licensee’s program supplier,
before the offer time for the event or series, offered to transfer to each national broadcaster, in accordance with sections 146G and 146H, the right to televise live in the corresponding coverage area:
(i) if subparagraph (c)(i) applies—the whole of the event or series; or
(ii) if subparagraph (c)(ii) applies—the remainder of the event or series.
Note 1: For compliance by licensees, see clause 7 of Schedule 2.
Note 2: For delayed televising in the Central-Western time zones, see section 146KA.
(2) For the purposes of subsection (1), a licensee is taken to have televised live the whole of an event, or the whole of a series of events, if the licensee televises live all but an insubstantial proportion of the event or series, as the case may be. Note: For example, interruptions by way of commercial breaks, news
breaks, program promotions, announcements or brief crosses to other live events would amount to an insubstantial proportion of the event or series being televised.
Anti-hoarding rules Part 10A Commercial television broadcasting licensees Division 2
Section 146F
Broadcasting Services Act 1992 469
(3) If a commercial television broadcasting licensee has a right to televise live a substantial proportion of a designated event, this section has effect, in relation to the licensee, as if that proportion were a designated event in its own right.
(4) If a commercial television broadcasting licensee has a right to televise live a substantial proportion of a designated series of events, this section has effect, in relation to the licensee, as if that proportion were a designated series of events in its own right.
146F Anti-hoarding rule—program suppliers
(1) A commercial television broadcasting licensee’s program supplier must not intentionally or recklessly contravene the anti-hoarding rule.
Penalty: 2,000 penalty units.
(2) A commercial television broadcasting licensee’s program supplier contravenes the anti-hoarding rule if:
(a) the program supplier is entitled to confer on the licensee (the first licensee) a right to televise live, in the licence area for the licence, the whole of a designated event or the whole of a designated series of events; and
(b) the program supplier acquired the entitlement when the event was a designated event, or the series was a designated series of events, as the case may be; and
(c) either: (i) the program supplier did not confer on the first licensee,
or on another commercial television broadcasting licensee whose licence area is the same as that of the first licensee, the right to televise live in that area any part of the event or series; or
(ii) the program supplier conferred on the first licensee, or on another commercial television broadcasting licensee whose licence area is the same as that of the first licensee, the right to televise live in that area some, but not all, of the event or series; and
Part 10A Anti-hoarding rules Division 2 Commercial television broadcasting licensees
Section 146G
470 Broadcasting Services Act 1992
(d) the program supplier did not, before the offer time for the event or series, offer to transfer to each national broadcaster, in accordance with sections 146G and 146H, the right to televise live in the corresponding coverage area:
(i) if subparagraph (c)(i) applies—the whole of the event or series; or
(ii) if subparagraph (c)(ii) applies—the remainder of the event or series.
(3) If a commercial television broadcasting licensee’s program supplier is entitled to confer on the licensee a right to televise live a substantial proportion of a designated event, this section has effect, in relation to the program supplier, as if that proportion were a designated event in its own right.
(4) If a commercial television broadcasting licensee’s program supplier is entitled to confer on the licensee a right to televise live a substantial proportion of a designated series of events, this section has effect, in relation to the program supplier, as if that proportion were a designated series of events in its own right.
(5) This section has no effect to the extent (if any) to which it purports to authorise the acquisition of property if that acquisition:
(a) is otherwise than on just terms; and (b) would be invalid because of paragraph 51(xxxi) of the
Constitution.
(6) 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.
146G What constitutes an offer to transfer rights to televise live events
(1) For the purposes of this Division, a commercial television broadcasting licensee, or a program supplier, is taken to offer to transfer to a national broadcaster the right to televise live:
Anti-hoarding rules Part 10A Commercial television broadcasting licensees Division 2
Section 146H
Broadcasting Services Act 1992 471
(a) the whole or a part of a particular designated event; or (b) the whole or a part of a particular designated series of events;
if, and only if, the licensee or supplier, as the case may be, offers to make an arrangement (whatever its terms or form) which in substance gives the national broadcaster the right to televise live the whole or the part of the event or series, as the case may be.
(2) In determining whether an arrangement is covered by subsection (1), regard must be had to the practical effect of the arrangement.
146H Offers to transfer rights to televise live events
(1) This section applies to an offer by a commercial television broadcasting licensee, or a program supplier, to transfer to a particular national broadcaster (the first national broadcaster) the right to televise live:
(a) the whole or a part of a particular designated event; or (b) the whole or a part of a particular designated series of events.
(2) The offer must be in writing.
(3) The offer must be given to the Managing Director of the first national broadcaster.
(4) The offer must be given to the Managing Director of the first national broadcaster at or about the same time as a corresponding offer is made to the Managing Director of the other national broadcaster.
(5) The offer must be open for acceptance by the first national broadcaster throughout the period:
(a) beginning when the offer is given to the Managing Director of the first national broadcaster; and
(b) ending immediately before the start of the event or series.
(6) The period referred to in subsection (5) must not be shorter than 7 days.
Part 10A Anti-hoarding rules Division 2 Commercial television broadcasting licensees
Section 146J
472 Broadcasting Services Act 1992
(7) The offer must require that the consideration to be given by the first national broadcaster is to consist of a promise to pay $1, if and when demanded by the licensee or the program supplier, as the case requires.
(8) The first national broadcaster is not entitled to accept the offer if a corresponding offer has already been accepted by the other national broadcaster, unless the other national broadcaster consents in writing.
(9) If: (a) the offer is accepted by the first national broadcaster; and (b) a corresponding offer is simultaneously accepted by the other
national broadcaster; then:
(c) the licensee or program supplier, as the case may be, may elect to treat one of those acceptances as having preceded the other of those acceptances; and
(d) if such an election is made—the other of those acceptances has no effect unless the national broadcaster who gave the preceding acceptance consents in writing.
146J Contracts to acquire rights to televise live events must authorise the transfer of the rights
(1) Neither a commercial television broadcasting licensee, nor the licensee’s program supplier, must enter into a contract under which the licensee or the program supplier, as the case may be:
(a) acquires; or (b) will be entitled to acquire (whether on the fulfilment of a
condition or otherwise); rights to televise live the whole, or a substantial proportion, of a designated event, or of a designated series of events, unless the contract authorises the licensee or program supplier, as the case may be, to make an offer of the kind referred to in section 146E.
(2) A commercial television broadcasting licensee’s program supplier must not enter into a contract under which the program supplier:
(a) is entitled; or
Anti-hoarding rules Part 10A Commercial television broadcasting licensees Division 2
Section 146K
Broadcasting Services Act 1992 473
(b) will be entitled (whether on the fulfilment of a condition or otherwise);
to confer on the licensee the right to televise live the whole, or a substantial proportion, of a designated event, or of a designated series of events, unless the contract authorises the program supplier to make an offer of the kind referred to in section 146F.
(3) A contract entered into in contravention of subsection (1) or (2) is void.
146K Simultaneous events in a series
Licensees
(1) For the purposes of this Division, if: (a) a commercial television broadcasting licensee has the right to
televise live, in the licence area for the licence, a particular designated series of events; and
(b) during a particular period, 2 or more events in that series (the simultaneous events) wholly or partly overlap; and
(c) during that period, the licensee televises live in that area one of those simultaneous events;
the licensee is taken, during that period, to have televised live in that area the remainder of those simultaneous events. Note: For delayed televising in the Central-Western time zones, see
section 146KA.
(2) For the purposes of paragraph (1)(c), a licensee is taken to have televised live the whole of an event if the licensee televises live all but an insubstantial proportion of the event. Note: For example, interruptions by way of commercial breaks, news
breaks, program promotions, announcements or brief crosses to other live events would amount to an insubstantial proportion of the event being televised.
(3) If a commercial television broadcasting licensee has a right to televise live a substantial proportion of a designated series of events, subsection (1) has effect, in relation to the licensee, as if that proportion were a designated series of events in its own right.
Part 10A Anti-hoarding rules Division 2 Commercial television broadcasting licensees
Section 146KA
474 Broadcasting Services Act 1992
Program suppliers
(4) For the purposes of this Division, if: (a) a commercial television broadcasting licensee’s program
supplier is entitled to confer on the licensee a right to televise live, in the licence area for the licence, a particular designated series of events; and
(b) during a particular period, 2 or more events in that series (the simultaneous events) wholly or partly overlap; and
(c) the program supplier conferred on the licensee the right to televise live during that period in that area one of those simultaneous events;
the program supplier is taken to have conferred on the licensee the right to televise live during that period in that area the remainder of those simultaneous events.
(5) If a commercial television broadcasting licensee’s program supplier is entitled to confer on the licensee a right to televise live a substantial proportion of a designated series of events, subsection (4) has effect, in relation to the program supplier, as if that proportion were a designated series of events in its own right.
146KA Delayed televising in the Central-Western time zones
(1) For the purposes of paragraph 146E(1)(c), if: (a) a commercial television broadcasting licensee televises, in
the licence area for the licence: (i) a designated event or a designated series of events; or
(ii) a part of a designated event or a part of a designated series of events; and
(b) the event or series is eligible for delayed televising in the Central-Western time zones; and
(c) apart from this subsection, the televising mentioned in paragraph (a) is not live; and
(d) the licence area is wholly or substantially within a particular Central-Western time zone; and
Anti-hoarding rules Part 10A Commercial television broadcasting licensees Division 2
Section 146KA
Broadcasting Services Act 1992 475
(e) assuming the event or series, or the part of the event or series, as the case may be, had been televised live in Sydney—the event or series, or the part of the event or series, as the case may be, is televised, as mentioned in paragraph (a), not later than the local time in that zone that is equivalent to the time at which the event or series, or the part of the event or series, as the case may be, was televised live in Sydney;
the event or series, or the part of the event or series, as the case may be, is taken to be televised live by the licensee in the licence area.
(2) For the purposes of paragraph 146K(1)(c), if: (a) a commercial television broadcasting licensee has the right to
televise live, in the licence area for the licence, a particular designated series of events; and
(b) during a particular period, 2 or more events in that series wholly or partly overlap; and
(c) the licensee televises in the licence area one of those events; and
(d) the series is eligible for delayed televising in the Central-Western time zones; and
(e) apart from this subsection, the televising mentioned in paragraph (c) is not live; and
(f) the licence area is wholly or substantially within a particular Central-Western time zone; and
(g) assuming the event had been televised live in Sydney—the event is televised, as mentioned in paragraph (c), not later than the local time in that zone that is equivalent to the time at which the event was televised live in Sydney;
the event is taken to be televised live by the licensee in the licence area during that period.
(3) For the purposes of subsections (1) and (2), a licensee is taken to have televised live the whole of an event, or the whole of a series of events, if the licensee televises all but an insubstantial proportion of the event or series, as the case may be. Note: For example, interruptions by way of commercial breaks, news
breaks, program promotions, announcements or brief crosses to other
Part 10A Anti-hoarding rules Division 2 Commercial television broadcasting licensees
Section 146KA
476 Broadcasting Services Act 1992
live events would amount to an insubstantial proportion of the event or series being televised.
(4) If a commercial television broadcasting licensee has a right to televise live a substantial proportion of a designated event, this section has effect, in relation to the licensee, as if that proportion were a designated event in its own right.
(5) If a commercial television broadcasting licensee has a right to televise live a substantial proportion of a designated series of events, this section has effect, in relation to the licensee, as if that proportion were a designated series of events in its own right.
Anti-hoarding rules Part 10A National broadcasters Division 3
Section 146L
Broadcasting Services Act 1992 477
Division 3—National broadcasters
146L Anti-hoarding rule
(1) A national broadcaster must not contravene the anti-hoarding rule.
(2) A national broadcaster contravenes the anti-hoarding rule if: (a) the national broadcaster has a right to televise live, in a
coverage area, the whole of a designated event, or the whole of a designated series of events; and
(b) the national broadcaster acquired the right when the event was a designated event, or the series was a designated series of events, as the case may be; and
(c) either: (i) the national broadcaster did not televise live in that area
any part of the event or series; or (ii) the national broadcaster televised live in that area some,
but not all, of the event or series; and (d) the national broadcaster did not, before the offer time for the
event or series of events, offer to transfer to the other national broadcaster, in accordance with sections 146M and 146N, the right to televise live in that area:
(i) if subparagraph (c)(i) applies—the whole of the event or series; or
(ii) if subparagraph (c)(ii) applies—the remainder of the event or series.
Note: For delayed televising in the Central-Western time zones, see section 146R.
(3) For the purposes of subsection (2), a national broadcaster is taken to have televised live the whole of an event, or the whole of a series of events, if the national broadcaster televises live all but an insubstantial proportion of the event or series, as the case may be. Note 1: For example, in the case of the ABC, interruptions by way of news
breaks, program promotions, announcements or brief crosses to other live events would amount to an insubstantial proportion of the event or series being televised.
Part 10A Anti-hoarding rules Division 3 National broadcasters
Section 146M
478 Broadcasting Services Act 1992
Note 2: For example, in the case of the SBS, interruptions by way of commercial breaks, news breaks, program promotions, announcements or brief crosses to other live events would amount to an insubstantial proportion of the event or series being televised.
(4) If a national broadcaster has a right to televise live a substantial proportion of a designated event, this section has effect, in relation to the national broadcaster, as if that proportion were a designated event in its own right.
(5) If a national broadcaster has a right to televise live a substantial proportion of a designated series of events, this section has effect, in relation to the national broadcaster, as if that proportion were a designated series of events in its own right.
(6) This section does not apply to a right acquired by a national broadcaster because of the operation of Division 2 or this Division.
146M What constitutes an offer to transfer rights to televise live events
(1) For the purposes of this Division, a national broadcaster (the first national broadcaster) is taken to offer to transfer to the other national broadcaster the right to televise live:
(a) the whole or a part of a particular designated event; or (b) the whole or a part of a particular designated series of events;
if, and only if, the first national broadcaster offers to make an arrangement (whatever its terms or form) which in substance gives the other national broadcaster the right to televise live the whole or the part of the event or series, as the case may be.
(2) In determining whether an arrangement is covered by subsection (1), regard must be had to the practical effect of the arrangement.
146N Offers to transfer rights to televise live events
(1) This section applies to an offer by a national broadcaster to transfer to the other national broadcaster the right to televise live:
(a) the whole or a part of a particular designated event; or (b) the whole or a part of a particular designated series of events.
Anti-hoarding rules Part 10A National broadcasters Division 3
Section 146P
Broadcasting Services Act 1992 479
(2) The offer must be in writing.
(3) The offer must be given to the Managing Director of the other national broadcaster.
(4) The offer must be open for acceptance by the other national broadcaster throughout the period:
(a) beginning when the offer is given to the Managing Director of the other national broadcaster; and
(b) ending immediately before the start of the event or series.
(5) The period referred to in subsection (4) must not be shorter than 7 days.
(6) The offer must require that the consideration to be given by the other national broadcaster is to consist of a promise to pay $1, if and when demanded by the national broadcaster who made the offer.
146P Contracts to acquire rights to televise live events must authorise the transfer of the rights
(1) A national broadcaster must not enter into a contract under which the national broadcaster:
(a) acquires; or (b) will be entitled to acquire (whether on the fulfilment of a
condition or otherwise); rights to televise live the whole, or a substantial proportion, of a designated event, or of a designated series of events, unless the contract authorises the national broadcaster to make an offer of the kind referred to in section 146L.
(2) A contract entered into in contravention of subsection (1) is void.
146Q Simultaneous events in a series
(1) For the purposes of this Division, if: (a) a national broadcaster has the right to televise live, in a
coverage area, a particular designated series of events; and
Part 10A Anti-hoarding rules Division 3 National broadcasters
Section 146R
480 Broadcasting Services Act 1992
(b) during a particular period, 2 or more events in that series (the simultaneous events) wholly or partly overlap; and
(c) during that period, the national broadcaster televises live in that area one of those simultaneous events;
the national broadcaster is taken, during that period, to have televised live in that area the remainder of those simultaneous events. Note: For delayed televising in the Central-Western time zones, see
section 146R.
(2) For the purposes of paragraph (1)(c), a national broadcaster is taken to have televised live the whole of an event if the broadcaster televises live all but an insubstantial proportion of the event. Note 1: For example, in the case of the ABC, interruptions by way of news
breaks, program promotions, announcements or brief crosses to other live events would amount to an insubstantial proportion of the event being televised.
Note 2: For example, in the case of the SBS, interruptions by way of commercial breaks, news breaks, program promotions, announcements or brief crosses to other live events would amount to an insubstantial proportion of the event being televised.
(3) If a national broadcaster has a right to televise live a substantial proportion of a designated series of events, this section has effect, in relation to the national broadcaster, as if that proportion were a designated series of events in its own right.
146R Delayed televising in the Central-Western time zones
(1) For the purposes of paragraph 146L(2)(c), if: (a) a national broadcaster televises, in a coverage area:
(i) a designated event or a designated series of events; or (ii) a part of a designated event or a part of a designated
series of events; and (b) the event or series is eligible for delayed televising in the
Central-Western time zones; and (c) apart from this subsection, the televising mentioned in
paragraph (a) is not live; and (d) the coverage area is wholly or substantially within a
particular Central-Western time zone; and
Anti-hoarding rules Part 10A National broadcasters Division 3
Section 146R
Broadcasting Services Act 1992 481
(e) assuming the event or series, or the part of the event or series, as the case may be, had been televised live in Sydney—the event or series, or the part of the event or series, as the case may be, is televised, as mentioned in paragraph (a), not later than the local time in that zone that is equivalent to the time at which the event or series, or the part of the event or series, as the case may be, was televised live in Sydney;
the event or series, or the part of the event or series, as the case may be, is taken to be televised live by the national broadcaster in the coverage area.
(2) For the purposes of paragraph 146Q(1)(c), if: (a) a national broadcaster has the right to televise live, in a
coverage area, a particular designated series of events; and (b) during a particular period, 2 or more events in that series
wholly or partly overlap; and (c) the broadcaster televises in the coverage area one of those
events; and (d) the series is eligible for delayed televising in the
Central-Western time zones; and (e) apart from this subsection, the televising mentioned in
paragraph (c) is not live; and (f) the coverage area is wholly or substantially within a
particular Central-Western time zone; and (g) assuming the event had been televised live in Sydney—the
event is televised, as mentioned in paragraph (c), not later than the local time in that zone that is equivalent to the time at which the event was televised live in Sydney;
the event is taken to be televised live by the national broadcaster in the coverage area during that period.
(3) For the purposes of subsections (1) and (2), a national broadcaster is taken to have televised live the whole of an event, or the whole of a series of events, if the broadcaster televises all but an insubstantial proportion of the event or series, as the case may be. Note 1: For example, in the case of the ABC, interruptions by way of news
breaks, program promotions, announcements or brief crosses to other live events would amount to an insubstantial proportion of the event or series being televised.
Part 10A Anti-hoarding rules Division 3 National broadcasters
Section 146R
482 Broadcasting Services Act 1992
Note 2: For example, in the case of the SBS, interruptions by way of commercial breaks, news breaks, program promotions, announcements or brief crosses to other live events would amount to an insubstantial proportion of the event or series being televised.
(4) If a national broadcaster has a right to televise live a substantial proportion of a designated event, this section has effect, in relation to the broadcaster, as if that proportion were a designated event in its own right.
(5) If a national broadcaster has a right to televise live a substantial proportion of a designated series of events, this section has effect, in relation to the broadcaster, as if that proportion were a designated series of events in its own right.
Anti-hoarding rules Part 10A Review of anti-hoarding provisions Division 4
Section 146S
Broadcasting Services Act 1992 483
Division 4—Review of anti-hoarding provisions
146S Review of anti-hoarding provisions
(1) Within 2 years after the commencement of this Part, the Minister must cause to be conducted a review of the effectiveness of the anti-hoarding provisions enacted by this Part.
(2) The Minister must cause a report to be prepared of the review under subsection (1).
(3) The Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.
Part 11 Complaints to the ACMA Division 1 Complaints relating to action under licences and class licences
Section 147
484 Broadcasting Services Act 1992
Part 11—Complaints to the ACMA
Division 1—Complaints relating to action under licences and class licences
147 Complaints relating to offences or breach of licence conditions
If a person believes that another person who is providing a broadcasting service has:
(a) committed an offence against this Act or the regulations; or (aa) breached a civil penalty provision; or (b) breached a condition of a licence or a class licence;
the person may make a complaint to the ACMA about the matter.
148 Complaints under codes of practice
If: (a) a person has made a complaint to a provider of broadcasting
services on a matter relating to: (i) program content; or
(ii) compliance with a code of practice that applies to those services and that is included in the Register of codes of practice; and
(b) if there is a relevant code of practice relating to the handling of complaints of that kind—the complaint was made in accordance with that code of practice; and
(c) either: (i) the person has not received a response within 60 days
after making the complaint; or (ii) the person has received a response within that period
but considers that response to be inadequate; the person may make a complaint to the ACMA about the matter.
Complaints to the ACMA Part 11 Complaints relating to action under licences and class licences Division 1
Section 149
Broadcasting Services Act 1992 485
149 Investigation of complaints by the ACMA
(1) Subject to subsection (2), the ACMA must investigate the complaint.
(2) The ACMA need not investigate the complaint if it is satisfied that: (a) the complaint is frivolous or vexatious or was not made in
good faith; or (b) in the case of a complaint referred to in section 147—the
complaint does not relate to: (i) an offence against this Act or the regulations; or
(ia) a breach of a civil penalty provision; or (ii) a breach of a condition of a licence.
(3) The ACMA must notify the complainant of the results of such an investigation.
Part 11 Complaints to the ACMA Division 2 Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS
Section 150
486 Broadcasting Services Act 1992
Division 2—Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS
150 Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS
(1) If: (a) a person has made a complaint to the Australian
Broadcasting Corporation or the Special Broadcasting Service Corporation on the ground that the Corporation has, in providing a national broadcasting service or a datacasting service, acted contrary to a code of practice developed by the Corporation and notified to the ACMA; and
(b) either: (i) the person has not received a response within 60 days
after making the complaint; or (ii) the person has received a response within that period
but considers that response to be inadequate; the person may make a complaint to the ACMA about the matter.
(2) If: (a) a person has made a complaint to the Australian
Broadcasting Corporation or the Special Broadcasting Service Corporation on the ground that the Corporation has breached Part 9D (which deals with captioning); and
(b) either: (i) the person has not received a response within 30 days
after making the complaint; or (ii) the person has received a response within that period
but considers that response to be inadequate; the person may make a complaint to the ACMA about the matter.
Complaints to the ACMA Part 11 Complaints relating to national broadcasting services or datacasting services provided
by the ABC or SBS Division 2
Section 151
Broadcasting Services Act 1992 487
151 Investigation of complaints relating to the ABC or SBS by the ACMA
(1) Subject to subsection (2), the ACMA must investigate the complaint.
(2) The ACMA need not investigate the complaint if it is satisfied that: (a) the complaint is frivolous or vexatious or was not made in
good faith; or (b) the complaint is not relevant to a code of practice developed
by the Corporation.
152 Action by ACMA where complaint justified
(1) If, having investigated a complaint, the ACMA is satisfied that: (a) the complaint was justified; and (b) the ACMA should take action under this section to encourage
the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation to comply with the relevant code of practice;
the ACMA may, by notice in writing given to the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation, recommend that it take action to comply with the relevant code of practice and take such other action in relation to the complaint as is specified in the notice.
(2) That other action may include broadcasting or otherwise publishing an apology or retraction.
(3) The ACMA must notify the complainant of the results of such an investigation.
153 ACMA may report to Minister on results of recommendation
(1) If: (a) the ACMA has made a recommendation to the Australian
Broadcasting Corporation or the Special Broadcasting Service Corporation under section 152; and
(b) the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation, as the case may be, does
Part 11 Complaints to the ACMA Division 2 Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS
Section 153
488 Broadcasting Services Act 1992
not, within 30 days after the recommendation was given, take action that the ACMA considers to be appropriate;
the ACMA may give the Minister a written report on the matter.
(2) The Minister must cause a copy of the report to be laid before each House of the Parliament within 7 sitting days of that House after the day on which he or she received the report.
Information gathering by the ACMA Part 13 Introduction Division 1
Section 168
Broadcasting Services Act 1992 489
Part 13—Information gathering by the ACMA
Division 1—Introduction
168 Obtaining of information by the ACMA
(1) In informing itself on any matter relevant to its broadcasting, content and datacasting functions (as defined in the Australian Communications and Media Authority Act 2005), the ACMA:
(a) may consult with such persons, bodies and groups as it thinks fit, and may form consultative committees for that purpose; and
(b) may conduct investigations and hold hearings; and (c) may otherwise inform itself in any manner it thinks fit.
(2) Subject to any directions by the Minister under this Part, the procedure that the ACMA adopts in informing itself on any matter relevant to those functions is to be that which the ACMA considers:
(a) will be the quickest and most economical in the circumstances; and
(b) will also promote the due administration of this Act.
169 Decision-making by the ACMA not limited to matters discovered by investigation or hearing
In making a decision on any matter relating to the functions referred to in subsection 168(1), the ACMA is not limited to a consideration of material made available through an investigation or hearing conducted in relation to the matter, but may take into account such other matters as it considers relevant, including the knowledge and experience of the members.
Part 13 Information gathering by the ACMA Division 2 Investigations
Section 170
490 Broadcasting Services Act 1992
Division 2—Investigations
170 Investigations by the ACMA
The ACMA may conduct investigations for the purposes of the performance or exercise of any of its broadcasting, content and datacasting functions (as defined in the Australian Communications and Media Authority Act 2005) and related powers.
171 Minister may direct ACMA to conduct an investigation
(1) The Minister may direct the ACMA in writing to investigate any matter with respect to which the Parliament is given power to make laws by paragraph 51(v) of the Constitution.
(2) Without limiting subsection (1), the Minister may direct the ACMA to investigate:
(a) any matter that the Minister is satisfied should be investigated in the interests of the due administration of this Act; or
(b) any matter relating to the future regulation or operation of a carriage service or a content service.
(3) In this section:
carriage service has the same meaning as in the Telecommunications Act 1997.
content service has the same meaning as in the Telecommunications Act 1997.
172 ACMA may call for written submissions from the public
The ACMA may, in conducting an investigation, call for written submissions from members of the public.
Information gathering by the ACMA Part 13 Investigations Division 2
Section 173
Broadcasting Services Act 1992 491
173 Notice requiring appearance for examination
For the purposes of an investigation, the ACMA may give a notice in writing to a person summoning the person:
(a) to attend before a delegate of the ACMA named in the notice to produce documents or to answer questions; or
(b) to provide documents or other information to the ACMA; relevant to the subject matter of the investigation.
174 Examination on oath or affirmation
(1) If a person is summoned to attend before a delegate of the ACMA, the delegate may examine that person on oath or affirmation and, for that purpose:
(a) may require the person to take an oath or make an affirmation; and
(b) may administer an oath or affirmation to the person.
(2) The oath or affirmation is to be an oath or affirmation that the statements the person will make will be true to the best of the person’s knowledge or belief.
(3) The delegate may require the person to answer a question that is put to the person at an examination and that is relevant to a matter that the ACMA is investigating or is to investigate.
175 Examination to take place in private
The examination of a person for the purposes of an investigation must be conducted in private, but the person is entitled to have an adviser present at the examination.
176 Record to be made of examination
(1) If a person is examined by a delegate of the ACMA, a record must be made of the examination and the person is entitled to be given a written copy of the record.
Part 13 Information gathering by the ACMA Division 2 Investigations
Section 177
492 Broadcasting Services Act 1992
(2) If the record of the examination of a person is made in electronic form, the person is, if the person so requests, to be given a copy of the record in that form.
177 Production of documents for inspection
The ACMA may, by notice in writing given to a person, require the person:
(a) to make available for inspection by a member of the staff of the ACMA any documents in the possession of the person that may contain information relevant to the subject matter of an investigation; and
(b) to permit that member to make copies of any such documents.
178 Report on investigation
(1) The ACMA may prepare a report on an investigation, and must prepare a report on an investigation conducted at the direction of the Minister and give a copy of each report conducted at the direction of the Minister to the Minister.
(2) If a report on an investigation relates to conduct that could constitute an offence under this Act or another law of the Commonwealth, the ACMA may give a copy of the report or of a part of the report to the Director of Public Prosecutions.
179 Publication of report
(1) Except in the case of a report prepared as a result of an investigation directed by the Minister, the ACMA may cause a copy of a report on an investigation to be published.
(2) The Minister may direct the ACMA to publish a report on an investigation directed by the Minister.
(3) The ACMA is not required to publish, or to disclose to a person to whose affairs it relates, a report or part of a report if the publication or disclosure would:
(a) disclose matter of a confidential character; or
Information gathering by the ACMA Part 13 Investigations Division 2
Section 180
Broadcasting Services Act 1992 493
(b) be likely to prejudice the fair trial of a person.
180 Person adversely affected by report to be given opportunity to comment
If publication of matter in a report or part of a report would or would be likely to adversely affect the interests of a person, the ACMA must not publish the report or the part of the report until it has given the person a reasonable period, not exceeding 30 days, to make representations, either orally or in writing, in relation to the matter.
Part 13 Information gathering by the ACMA Division 3 Hearings
Section 182
494 Broadcasting Services Act 1992
Division 3—Hearings
182 Power to hold hearings
The ACMA may hold hearings for the purposes of the performance or exercise of any of its broadcasting, content and datacasting functions (as defined in the Australian Communications and Media Authority Act 2005) and related powers.
183 Minister may direct ACMA to hold a hearing
If the Minister is satisfied that the ACMA should, in the interests of the due administration of this Act, hold a hearing in relation to any matter, the Minister may direct the ACMA in writing to hold a hearing in relation to the matter.
184 Procedure for conduct of hearings
(1) Subject to this Division, the procedure for the conduct of a hearing is within the discretion of the ACMA.
(2) The ACMA may give directions, either generally or in relation to a particular case, for the procedures to be followed in relation to the conduct of hearings.
185 ACMA may direct holding of conference
(1) The ACMA may, at any stage of a hearing, direct persons participating or seeking to participate in the hearing to attend a conference before a member of the ACMA or a member of the staff of the ACMA for the purpose of:
(a) discussing matters relevant to the hearing; or (b) clarifying any of the matters to be dealt with by the hearing;
or (c) resolving any differences between the persons participating
in the hearing.
(2) If a person who is directed to participate in a conference in relation to a hearing fails, without reasonable excuse, to attend the
Information gathering by the ACMA Part 13 Hearings Division 3
Section 186
Broadcasting Services Act 1992 495
conference, the person may be excluded from participation or further participation in the hearing.
186 Hearings to be informal, quick and economical
(1) A hearing is to be conducted: (a) with as little technicality and formality; and (b) as quickly and economically;
as the requirements of this Act and a proper consideration of the matters before the ACMA permit.
(2) In holding a hearing, the ACMA is not bound by the rules of evidence.
187 Hearings to be in public except in exceptional cases
(1) Subject to subsection (2), a hearing conducted by the ACMA must take place in public.
(2) A hearing or a part of a hearing may be conducted in private if: (a) evidence that may be given, or a matter that may arise, during
the hearing or the part of the hearing is of a confidential nature; or
(b) the ACMA is satisfied that hearing a matter or part of a matter in public would not be conducive to the due administration of this Act.
188 Public notice of hearings
If the ACMA is to conduct a hearing in public, the ACMA must give reasonable public notice of the conduct of the hearing.
189 Confidential material not to be published
If a hearing or part of a hearing takes place in public, the ACMA may order that evidence or other material presented to the hearing, or material in a submission lodged with the ACMA under section 196, that is, in the opinion of the ACMA, of a confidential nature not be published, or that its disclosure be restricted as directed by the ACMA.
Part 13 Information gathering by the ACMA Division 3 Hearings
Section 190
496 Broadcasting Services Act 1992
190 Directions as to private hearings
If a hearing or part of a hearing takes place in private, the ACMA: (a) must give directions as to the persons who may be present at
the hearing or the part of the hearing; and (b) may give directions restricting the disclosure of evidence or
other material presented at the hearing or the part of the hearing.
191 Constitution of ACMA for conduct of hearings
The ACMA is to be constituted for the purposes of a hearing by a panel consisting of such members as the Chair directs.
192 Presiding member
A panel conducting a hearing is to be presided over by the Chair or, if the Chair is not a member of the panel, by such member of the panel as the Chair directs.
193 Reconstitution of hearing panel
(1) If, during the course of a hearing: (a) it appears to the Chair that, because of the importance of the
matters in issue the panel conducting a hearing should be reconstituted by the addition to that panel of one or more additional members; or
(b) a member of the panel conducting the hearing is unable to continue with the hearing;
the Chair may direct that the panel be reconstituted.
(2) All proceedings in the hearing that have taken place before the reconstitution of the panel are, unless the panel as reconstituted otherwise directs, to be taken to have taken place before the reconstituted panel.
Information gathering by the ACMA Part 13 Hearings Division 3
Section 194
Broadcasting Services Act 1992 497
194 Exercise of powers in relation to conduct of hearing
The powers of the ACMA in relation to the conduct of a particular hearing may be exercised:
(a) by the panel conducting that hearing; or (b) by the Chair; or (c) by a member of the ACMA authorised by the Chair to
exercise those powers in relation to the hearing.
195 Summons to give evidence or produce documents
(1) The member presiding at a hearing may: (a) by notice in writing given to a person, summon that person to
appear before the ACMA as constituted for the purposes of the hearing to give evidence in relation to the subject matter of the hearing or to produce to the ACMA such documents as are specified in the notice, or to do both; or
(b) require a person appearing to give evidence either to take an oath or to make an affirmation; or
(c) administer an oath or affirmation to a person so appearing.
(2) The oath or affirmation to be taken or made by a person is an oath or affirmation that the evidence the person will give will be true.
196 Written submissions may be made to hearing
A person may lodge with the ACMA any submissions in writing that the person wishes the ACMA to take into account in relation to the subject matter of the hearing.
197 Evidence and submissions to be taken into account by ACMA
The ACMA must take into account: (a) evidence given, or a submission made, to it at a hearing; or (b) a submission lodged with it in relation to the hearing;
in making a decision on a matter to which the evidence or submission relates.
Part 13 Information gathering by the ACMA Division 3 Hearings
Section 198
498 Broadcasting Services Act 1992
198 Representation at hearings
(1) A person who wishes to participate in a hearing may be represented at the hearing by another person.
(2) As far as practicable, the ACMA is to ensure that a person is not at a disadvantage at a hearing because that person is not represented by another person.
199 Reports on hearings
(1) If the ACMA has completed a hearing, the ACMA must prepare and publish a report setting out its findings as a result of the hearing.
(2) If the hearing was conducted at the direction of the Minister, the ACMA must give a copy of the report to the Minister.
(3) The ACMA is not required to include in a report any material: (a) that is of a confidential nature; or (b) the disclosure of which is likely to prejudice the fair trial of a
person; or (c) that is the subject of an order or direction under section 189
or 190.
Information gathering by the ACMA Part 13 General Division 4
Section 200
Broadcasting Services Act 1992 499
Division 4—General
200 Protection of members and persons giving evidence
(1) A person who is a member of the panel conducting a hearing has in the performance of his or her duties as a member of the panel the same protection and immunity as a Justice of the High Court.
(2) A lawyer appearing before the ACMA at a hearing as the representative of another person has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
(3) A person who is summoned to appear at a hearing, or a person who gives evidence or produces documents at an investigation or a hearing, has the same protection as a witness in a proceeding in the High Court.
201 Protection of panel conducting hearing
A person must not: (a) obstruct a member of a panel conducting a hearing; or (b) disrupt a hearing; or (c) do any other act or thing that would, if the hearing were a
proceeding in the High Court, constitute a contempt in the face of that Court.
Penalty: Imprisonment for one year.
202 Non-compliance with requirement to give evidence
(1) A person required to give evidence or to produce documents at a hearing must not:
(a) fail to attend as required by the notice; or (b) fail to appear and report from day to day unless excused or
released from further attendance.
Penalty: Imprisonment for one year.
Part 13 Information gathering by the ACMA Division 4 General
Section 202
500 Broadcasting Services Act 1992
(1A) A person required to give evidence or to produce documents at a hearing must not:
(a) fail to attend as required by the notice; or (b) fail to appear and report from day to day unless excused or
released from further attendance.
(1B) Subsection (1A) is a civil penalty provision.
(2) A person required to answer a question, to give evidence or to produce documents under this Part must not:
(a) when required to take an oath or make an affirmation, refuse or fail to take the oath or make the affirmation; or
(b) refuse or fail to answer a question that the person is required to answer; or
(c) refuse or fail to produce a document that the person is required to produce.
Penalty: Imprisonment for one year.
(2AA) A person required to answer a question, to give evidence or to produce documents under this Part must not:
(a) when required to take an oath or make an affirmation, refuse or fail to take the oath or make the affirmation; or
(b) refuse or fail to answer a question that the person is required to answer; or
(c) refuse or fail to produce a document that the person is required to produce.
(2AB) Subsection (2AA) is a civil penalty provision.
(2A) Subsections (1), (1A), (2) and (2AA) do not apply if the person has a reasonable excuse. Note: In criminal proceedings, a defendant bears an evidential burden in
relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).
(2B) A person who wishes to rely on subsection (2A) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.
Information gathering by the ACMA Part 13 General Division 4
Section 203
Broadcasting Services Act 1992 501
(3) For the avoidance of doubt, it is declared that it is a reasonable excuse for a person to refuse to answer a question or to produce a document if the answer to the question or the production of the document would tend to incriminate the person.
(4) It is a reasonable excuse for a person to refuse to answer a question or to produce a document if:
(a) the person is a journalist; and (b) the answer to the question or the production of the document
would tend to disclose the identity of a person who supplied information in confidence to the journalist; and
(c) the information has been used for the purposes of: (i) a television or radio program; or
(ii) datacasting content.
(5) For the purposes of this section, journalist means a person engaged in the profession or practice of reporting for, photographing, editing, recording or making:
(a) television or radio programs; or (b) datacasting content;
of a news, current affairs, information or documentary character.
203 Proceedings for defamation not to lie
No action or proceeding, whether civil or criminal, lies: (a) against the Commonwealth, the Minister, the ACMA, a
member of the staff of the ACMA, a person who is a member of the panel constituting a hearing or a person acting with the authority of the ACMA in respect of the printing or publishing of a report of an investigation or a transcript of proceedings at a hearing; or
(b) in respect of the publication, by any means, of a fair and accurate report of proceedings at a hearing.
Part 14 Appeals to the Administrative Appeals Tribunal
Section 204
502 Broadcasting Services Act 1992
Part 14—Appeals to the Administrative Appeals Tribunal
204 Appeals to the Administrative Appeals Tribunal
Decisions under this Act
(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for a review of a decision set out in column 1 of the table made under the provision of this Act set out in column 2, but such an application may only be made by the person described in column 3. TABLE Column 1 Decision
Column 2 Provision
Column 3 Person who may apply
To make a determination under subsection 35D(2) in relation to a commercial radio broadcasting licence
Section 35D The licensee
Refusal to allocate an additional licence
Section 38A The licensee
Refusal to allocate an additional licence
Section 38B The applicant
Refusal to allocate licence
Section 38C The applicant
Cancellation of licence
Section 38C The licensee
Refusal to allocate licence
Subsection 40(1) The applicant
Direction that a licence not be allocated under subsection 40(1)
Subsection 40(7) The applicant
Appeals to the Administrative Appeals Tribunal Part 14
Section 204
Broadcasting Services Act 1992 503
Column 1 Decision
Column 2 Provision
Column 3 Person who may apply
That a person is not a suitable applicant or licensee (Commercial)
Subsection 41(2) The person
Variation of licence conditions or imposition of new conditions (Commercial)
Subsection 43(1) The licensee
To enter a newspaper in Register
Subsection 59(3) The publisher of a newspaper or a commercial television broadcasting licensee in the relevant licence area
Refusal to remove newspaper from Register
Subsection 59(4) The publisher of a newspaper or a commercial television broadcasting licensee in the relevant licence area
To enter a newspaper in Register
subsection 59(4A) The publisher of a newspaper or a commercial radio broadcasting licensee in the relevant licence area
Refusal to remove newspaper from Register
subsection 59(4B) The publisher of a newspaper or a commercial radio broadcasting licensee in the relevant licence area
Part 14 Appeals to the Administrative Appeals Tribunal
Section 204
504 Broadcasting Services Act 1992
Column 1 Decision
Column 2 Provision
Column 3 Person who may apply
Refusal to approve transaction or determination of period of approval
Section 61AJ or 61AMC
The applicant for approval
Refusal to extend time for compliance
Section 61AK or 61AMD
The applicant
Refusal to extend time for compliance
Section 61AP The applicant
To affirm or revoke a decision made under subsection 61AZE(1)
Section 61AZF A person whose interests are affected by the decision made under subsection 61AZE(1)
Refusal to approve temporary breach or determination of period of approval
Subsection 67(4) The applicant for approval
Refusal to extend time for compliance
Subsection 68(2) The applicant
Refusal to extend time for compliance
Subsection 71(3) The applicant
That a person is not a suitable applicant or licensee (Community)
Subsection 83(2) The person
Variation of licence conditions or imposition of new conditions (Community)
Subsection 87(1) The licensee
Refusal to approve the transfer of a community broadcasting licence
Section 91A The applicant or the proposed transferee
Appeals to the Administrative Appeals Tribunal Part 14
Section 204
Broadcasting Services Act 1992 505
Column 1 Decision
Column 2 Provision
Column 3 Person who may apply
That a person is not a suitable applicant or licensee (Temporary community)
Subsection 92D(2) The person
Variation of licence conditions (other than timing conditions), imposition of new conditions or variation of licence period (Temporary community)
Section 92J The licensee
Refusal to allocate licence
Subsection 96(1) The applicant
That a person is not a suitable applicant or licensee
Subsection 98(2) The person
Variation of conditions or imposition of new conditions
Subsection 99(2) The licensee
Variation of class licence conditions or imposition of new conditions
Subsection 120(1) A person operating under the class licence
Refusal of permission Subsection 121E(1) The subscription television broadcasting licensee or the related body corporate, as the case may be
Part 14 Appeals to the Administrative Appeals Tribunal
Section 204
506 Broadcasting Services Act 1992
Column 1 Decision
Column 2 Provision
Column 3 Person who may apply
Grant of permission Subsection 121E(1) A commercial television broadcasting licensee any part of whose licence area is included in the regional area
That subsection 121FC(1) applies to a company
Subsection 121FC(1) The company
Cancellation of an international broadcasting licence
Subsection 121FK(1) The licensee
Refusal to make a nominated broadcaster declaration
Section 121FLC The transmission provider or the content provider
Revocation of a nominated broadcaster declaration
Section 121FLG The holder of the declaration, or the content provider
Cancellation of an international broadcasting licence
Section 121FLH The licensee
Refusal to include a code of practice in the Register
Subsection 123(4) The relevant industry group
To make an exemption order or target reduction order
Section 130ZUA A person whose interests are affected by the decision to make the exemption order or target reduction order
Refusal to make an exemption order or target reduction order
Section 130ZUA The applicant
Appeals to the Administrative Appeals Tribunal Part 14
Section 204
Broadcasting Services Act 1992 507
Column 1 Decision
Column 2 Provision
Column 3 Person who may apply
To make an exemption order or target reduction order
Section 130ZY A person whose interests are affected by the decision to make the exemption order or target reduction order
Refusal to make an exemption order or target reduction order
Section 130ZY The applicant
Suspension or cancellation of licence
Section 143 The licensee
Declaration that a person is a program supplier of a commercial television broadcasting licensee
Subsection 146D(4) The person
Refusal to permit an accounting period ending on a day other than 30 June
Subsection 205B(2) The licensee
To issue a notice relating to the amount of licence fee paid
Subsection 205C(2) The licensee
That no additional fee be remitted or that part only of the additional fee be remitted
Subsection 205D(4) The licensee
Refusal of permission Subclause 7(2A) of Schedule 2
The licensee seeking the permission
Part 14 Appeals to the Administrative Appeals Tribunal
Section 204
508 Broadcasting Services Act 1992
Column 1 Decision
Column 2 Provision
Column 3 Person who may apply
Grant of permission Subclause 7(2A) of Schedule 2
A commercial television broadcasting licensee where the provision of the services would occur in any part of that licensee’s licence area
Refusal of permission Subclause 8(3) of Schedule 2
The licensee seeking the permission
Grant of permission Subclause 8(3) of Schedule 2
A commercial radio broadcasting licensee where the provision of the services would occur in any part of that licensee’s licence area
Refusal of permission Subclause 9(2A) of Schedule 2
The licensee seeking the permission
Grant of permission Subclause 9(2A) of Schedule 2
A community broadcasting licensee where the provision of the services would occur in any part of that licensee’s licence area
Decisions under a conditional access scheme registered under section 130ZCA
(2) An application may be made to the Administrative Appeals Tribunal for review of a decision set out in column 1 of the table, but such an application may only be made by the person described in column 2.
Appeals to the Administrative Appeals Tribunal Part 14
Section 205
Broadcasting Services Act 1992 509
Reviewable decisions Column 1 Column 2
Item Decision Person who may apply 1 Refusal to issue a reception
certificate under a conditional access scheme registered under section 130ZCA
The applicant
2 Revocation of a reception certificate under a conditional access scheme registered under section 130ZCA
The holder of the reception certificate
205 Notification of decisions to include notification of reasons and appeal rights
If the ACMA makes a decision that is reviewable under section 204, the ACMA is to include in the document by which the decision is notified:
(a) a statement setting out the reasons for the decision; and (b) a statement to the effect that an application may be made to
the Administrative Appeals Tribunal for a review of the decision.
Part 14A Accounts and payment of licence fees
Section 205A
510 Broadcasting Services Act 1992
Part 14A—Accounts and payment of licence fees
205A Definitions
In this Part:
channel A datacasting transmitter licence has the same meaning as in the Radiocommunications Act 1992.
gross earnings has the same meaning: (a) in relation to a commercial radio broadcasting licence—as in
the Radio Licence Fees Act 1964; and (b) in relation to a commercial television broadcasting licence—
as in the Television Licence Fees Act 1964; and (c) in relation to a channel A datacasting transmitter licence—as
in the Datacasting Transmitter Licence Fees Act 2006.
licence fee means a fee imposed under: (a) section 5 of the Radio Licence Fees Act 1964; or (b) section 5 of the Television Licence Fees Act 1964; or (c) section 7 of the Datacasting Transmitter Licence Fees Act
2006.
radiocommunications transmitter has the same meaning as in the Radiocommunications Act 1992.
205B Broadcasting licensees to keep accounts
(1) A commercial television broadcasting licensee or a commercial radio broadcasting licensee must:
(a) keep and maintain, in a recognised business or commercial form, financial accounts in relation to the service or services provided under the licence; and
(b) make those accounts available for inspection by the ACMA or an authorised officer when requested to do so; and
(c) within 6 months after 30 June in each year, give the ACMA:
Accounts and payment of licence fees Part 14A
Section 205B
Broadcasting Services Act 1992 511
(i) an audited balance-sheet and an audited profit and loss account, in a form approved by the ACMA, in relation to the service or services provided under the licence for the year ending on that 30 June; and
(ii) a statutory declaration stating the gross earnings in relation to the licence during that year; and
(d) keep such records in respect of the service or services provided under the licence as the ACMA directs and give copies of those records to the ACMA when requested to do so.
(2) A licensee may, with the permission of the ACMA, adopt an accounting period which is a period of 12 months ending on a day other than 30 June.
(3) If a licensee adopts such an accounting period, paragraph (1)(c) has effect as if:
(a) the reference in that paragraph to 6 months after 30 June were a reference to:
(i) if 6 months after the end of the accounting period does not include 31 December—6 months after the end of the accounting period; or
(ii) if 6 months after the end of the accounting period includes 31 December—the period starting immediately after the end of the accounting period and ending on that 31 December; and
(b) a reference in that paragraph to the year ending on 30 June were a reference to the year ending on the last day of that accounting period.
(4) The declaration referred to in subparagraph (1)(c)(ii) must be made by the chief executive officer or secretary of the licensee.
(5) In this section:
authorised officer means a member, or a member of the staff of the ACMA, authorised by the ACMA in writing for the purposes of this section. Note: For enforcement of this section, see Division 3 of Part 10 of this Act
and paragraphs 7(1)(ia) and 8(1)(ha) of Schedule 2.
Part 14A Accounts and payment of licence fees
Section 205BA
512 Broadcasting Services Act 1992
205BA Datacasting transmitter licensees to keep accounts
(1) A channel A datacasting transmitter licensee must: (a) keep and maintain, in a recognised business or commercial
form, financial accounts in relation to the transmission of matter by radiocommunications transmitters operating under the licence; and
(b) make those accounts available for inspection by the ACMA or an authorised officer when requested to do so; and
(c) within 6 months after the end of each financial year, give the ACMA:
(i) an audited balance-sheet and an audited profit and loss account, in a form approved by the ACMA, in relation to the transmission of matter by radiocommunications transmitters operating under the licence during the financial year; and
(ii) a statutory declaration stating the gross earnings in relation to the licence during the financial year; and
(d) keep such records in relation to the operation of radiocommunications transmitters under the licence as the ACMA directs, and give copies of those records to the ACMA when requested to do so.
(2) The declaration referred to in subparagraph (1)(c)(ii) must be made by the chief executive officer or secretary of the licensee.
Nominated datacaster declarations
(3) Clause 46 of Schedule 6 does not apply to this section.
Definition
(4) In this section:
authorised officer means a member, or a member of the staff, of the ACMA, authorised by the ACMA in writing for the purposes of this section. Note: For enforcement of this section, see paragraph 109A(1)(bb) of the
Radiocommunications Act 1992.
Accounts and payment of licence fees Part 14A
Section 205C
Broadcasting Services Act 1992 513
205C Payment of licence fees
(1) If a commercial television broadcasting licensee, a commercial radio broadcasting licensee or a channel A datacasting transmitter licensee pays an amount that the licensee believes is the licence fee that is due and payable in relation to the licence, the licensee must, in a notice accompanying the payment, inform the ACMA, in a form approved by the ACMA, of the manner of working out the amount paid.
(2) If: (a) the ACMA, having regard to the documents given to it under
paragraph 205B(1)(c) or 205BA(1)(c), works out the amount of the licence fee that is due and payable in relation to the licence; and
(b) the amount worked out is not the same as the amount paid; the ACMA must give the licensee, as soon as practicable, a notice in writing:
(c) specifying the amount worked out; and (d) setting out details of how the amount was worked out; and (e) if the amount paid is more than the amount worked out,
specifying the amount overpaid; and (f) if the amount paid is less than the amount worked out,
specifying the amount unpaid; and (g) if the ACMA is satisfied that the licensee deliberately
miscalculated the amount of the licence fee—stating that it is so satisfied.
(3) If the notice given to the licensee under subsection (2) specifies an amount overpaid, the ACMA must, within 21 days after the day the notice was issued, arrange for the amount to be refunded to the licensee.
205D Penalty for unpaid licence fees
(1) If an amount of licence fee remains unpaid after the due date, the following additional fees are due and payable by the licensee as penalties:
Part 14A Accounts and payment of licence fees
Section 205D
514 Broadcasting Services Act 1992
(a) an additional fee at the rate of 20% per annum on the amount unpaid, worked out from the due date;
(b) an additional fee of $1,500; unless subsection (2) or (3) applies in relation to the amount unpaid.
(2) If: (a) an amount of licence fee is specified in a notice under
paragraph 205C(2)(f) as an amount unpaid; and (b) the notice does not contain a statement that the ACMA is
satisfied that the licensee deliberately miscalculated the amount of the licence fee; and
(c) the amount unpaid is not paid within 21 days after the day the notice was issued;
then: (d) this subsection applies in relation to the amount unpaid; and (e) the following additional fees are due and payable by the
licensee as penalties: (i) an additional fee at the rate of 20% per annum on the
amount unpaid, worked out from the day the notice was issued;
(ii) an additional fee of $1,500.
(3) If: (a) an amount of licence fee is specified in a notice under
paragraph 205C(2)(f) as an amount unpaid; and (b) the notice does not contain a statement that the ACMA is
satisfied that the licensee deliberately miscalculated the amount of the licence fee; and
(c) the amount unpaid is paid within 21 days after the day the notice was issued;
then: (d) this subsection applies in relation to the amount unpaid; and (e) no additional fee is due and payable by the licensee as a
penalty.
Accounts and payment of licence fees Part 14A
Section 205D
Broadcasting Services Act 1992 515
(4) If an additional fee is due and payable by the licensee under subsection (1) or (2) in relation to an amount of licence fee, or such an additional fee has been paid, and an authorised person:
(a) is satisfied that: (i) the circumstances that contributed to the delay in
payment of the amount were not caused directly or indirectly by an act or omission of the licensee; and
(ii) the licensee has taken reasonable action to mitigate, or mitigate the effects of, those circumstances; or
(b) is satisfied that: (i) the circumstances that contributed to the delay in
payment of the amount were caused directly or indirectly by an act or omission of the licensee; and
(ii) the licensee has taken reasonable action to mitigate, or mitigate the effects of, those circumstances; and
(iii) having regard to the nature of those circumstances, it would be reasonable to remit the additional fee or part of that fee; or
(c) is satisfied that there are special circumstances that make it reasonable to remit the additional fee or part of that fee;
the authorised person may remit the additional fee or part of that fee.
(5) If: (a) an authorised person remits the additional fee or part of that
fee; and (b) the licensee has paid an amount of that fee;
the authorised person must, within 21 days after remitting that fee or part of that fee, arrange for so much of the amount as is remitted to be refunded to the licensee.
(6) Despite subsections (1) and (2), an amount of unpaid licence fee may be recovered immediately after the due date in a court of competent jurisdiction as a debt due to the Commonwealth.
(6A) An additional fee payable under subsection (1) or (2) may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.
Part 14A Accounts and payment of licence fees
Section 205D
516 Broadcasting Services Act 1992
(7) If: (a) judgment is entered or given in a court for the payment of an
amount of unpaid licence fee; and (b) interest is payable on the judgment debt; and (c) an additional fee is payable in respect of the unpaid licence
fee under paragraph (1)(a) or subparagraph (2)(e)(i); the amount of the additional fee that would, but for the operation of this subsection, be so payable is reduced by the amount of the interest payable on that judgment debt.
(8) If: (a) judgment is entered or given in a court for the payment of an
amount that includes an amount of unpaid licence fee; and (b) interest is payable on the judgment debt; and (c) an additional fee is be payable in respect of the unpaid
licence fee under paragraph (1)(a) or subparagraph (2)(e)(i); the amount of the additional fee that would, but for the operation of this subsection, be so payable is reduced by an amount worked out using the formula:
where:
interest on judgment debt means the dollar amount representing the amount of interest payable on the judgment debt at the time the debt is paid.
licence fee component of judgment debt means the amount determined by the court to be the amount of licence fee unpaid.
(9) In this section:
authorised person means: (a) the Minister; or (b) an officer authorised by the Minister in writing for the
purposes of this section.
Accounts and payment of licence fees Part 14A
Section 205D
Broadcasting Services Act 1992 517
due date, in relation to a licence fee, means the day on which the fee becomes payable under the Radio Licence Fees Act 1964, the Television Licence Fees Act 1964 or the Datacasting Transmitter Licence Fees Act 2006.
Part 14B Civil penalties Division 1 Ancillary contravention of civil penalty provision
Section 205E
518 Broadcasting Services Act 1992
Part 14B—Civil penalties
Division 1—Ancillary contravention of civil penalty provision
205E Ancillary contravention of civil penalty provision
(1) A person must not: (a) attempt to contravene a civil penalty provision (other than
this subsection); or (b) aid, abet, counsel or procure a contravention of a civil
penalty provision (other than this subsection); or (c) induce, whether by threats or promises or otherwise, a
contravention of a civil penalty provision (other than this subsection); or
(d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision (other than this subsection); or
(e) conspire with others to effect a contravention of a civil penalty provision (other than this subsection).
(2) Subsection (1) is a civil penalty provision.
Civil penalties Part 14B Civil penalty orders Division 2
Section 205EA
Broadcasting Services Act 1992 519
Division 2—Civil penalty orders
205EA Simplified outline
The following is a simplified outline of this Division:
• Pecuniary penalties are payable for contraventions of civil penalty provisions.
205F Civil penalty orders
(1) If the Federal Court is satisfied that a person has contravened a civil penalty provision, the Federal Court may order the person to pay the Commonwealth a pecuniary penalty.
(2) An order under subsection (1) is to be known as a civil penalty order.
Determining amount of pecuniary penalty
(3) In determining the pecuniary penalty, the Federal Court must have regard to all relevant matters, including:
(a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered as a
result of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by a court in
proceedings under this Act to have engaged in any similar conduct.
Maximum pecuniary penalty
(4) The pecuniary penalty payable by a person in respect of a contravention of a civil penalty provision (other than subsection 205E(1)) must not exceed the maximum pecuniary penalty that could have been imposed on the person if the person had been convicted of an offence against the provision of this Act that corresponds to the civil penalty provision.
Part 14B Civil penalties Division 2 Civil penalty orders
Section 205G
520 Broadcasting Services Act 1992
(5) The pecuniary penalty payable by a person in respect of a contravention of subsection 205E(1) that relates to another civil penalty provision must not exceed the maximum pecuniary penalty that could have been imposed on the person if the person had been convicted of an offence against the provision of this Act that corresponds to the other civil penalty provision.
Penalties for continuing contraventions
(6) If: (a) subsection 121FG(5), 121FHB(3), 121FJA(3) or 121FJD(3),
section 136F or subsection 138A(3), 140A(8) or 142A(3) applies to a contravention of a civil penalty provision; and
(b) civil penalty orders are made against a person in respect of 2 or more contraventions of such a provision;
the court may impose one penalty in respect of both or all of those contraventions, but that penalty must not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each contravention.
Conduct contravening more than one civil penalty provision
(7) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this section against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.
Civil enforcement of penalty
(8) A pecuniary penalty is a civil debt payable to the Commonwealth. The Commonwealth may enforce the civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.
205G Who may apply for a civil penalty order
(1) Only the ACMA may apply for a civil penalty order.
Civil penalties Part 14B Civil penalty orders Division 2
Section 205H
Broadcasting Services Act 1992 521
(2) Subsection (1) does not exclude the operation of the Director of Public Prosecutions Act 1983.
205H 2 or more proceedings may be heard together
The Federal Court may direct that 2 or more proceedings for civil penalty orders are to be heard together.
205J Time limit for application for an order
Proceedings for a civil penalty order may be started no later than 6 years after the contravention.
205K Civil evidence and procedure rules for civil penalty orders
The Federal Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.
205L Civil proceedings after criminal proceedings
The Federal Court must not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
205M Criminal proceedings during civil proceedings
(1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if:
(a) criminal proceedings are started or have already been started against the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.
(2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.
Part 14B Civil penalties Division 2 Civil penalty orders
Section 205N
522 Broadcasting Services Act 1992
205N Criminal proceedings after civil proceedings
Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person.
205P Evidence given in proceedings for a civil penalty order not admissible in criminal proceedings
Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:
(a) the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.
However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the civil penalty order.
205PAA Mistake of fact
(1) A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision (other than subsection 202(1A) or (2AA)) if:
(a) at or before the time of the conduct constituting the contravention, the person:
(i) considered whether or not facts existed; and (ii) was under a mistaken but reasonable belief about those
facts; and (b) had those facts existed, the conduct would not have
constituted a contravention of the civil penalty provision.
(2) For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if:
Civil penalties Part 14B Civil penalty orders Division 2
Section 205PAA
Broadcasting Services Act 1992 523
(a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
(3) A person who wishes to rely on subsection (1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.
Part 14C Injunctions
Section 205PA
524 Broadcasting Services Act 1992
Part 14C—Injunctions
205PA Simplified outline
The following is a simplified outline of this Part:
• The Federal Court may grant injunctions in relation to contraventions of subsection 121FG(3) or section 136A, 136B, 136C, 136D or 136E or subclause 49(3) of Schedule 6 (which deal with the provision of unlicensed services).
• The Federal Court may also grant injunctions in relation to contraventions of section 26AA (which deals with television licence area plans).
• The Federal Court may also grant injunctions in relation to transactions that are prohibited under Division 5A of Part 5 (which deals with media diversity).
205Q Injunctions
If a person has engaged, is engaging or is proposing to engage, in any conduct in contravention of section 26AA, 61AH or 61AMB or subsection 121FG(3) or section 136A, 136B, 136C, 136D or 136E or subclause 49(3) of Schedule 6, the Federal Court may, on the application of the ACMA, grant an injunction:
(a) restraining the person from engaging in the conduct; and (b) if, in the court’s opinion, it is desirable to do so—requiring
the person to do something.
205R Interim injunctions
Grant of interim injunction
(1) If an application is made to the Federal Court for an injunction under section 205Q, the court may, before considering the
Injunctions Part 14C
Section 205S
Broadcasting Services Act 1992 525
application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that section.
No undertakings as to damages
(2) The Federal Court is not to require an applicant for an injunction under section 205Q, as a condition of granting an interim injunction, to give any undertakings as to damages.
205S Discharge etc. of injunctions
The Federal Court may discharge or vary an injunction granted under this Part.
205T Certain limits on granting injunctions not to apply
The power of the Federal Court under this Part to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:
(a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind— whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.
205U Other powers of the Federal Court unaffected
The powers conferred on the Federal Court under this Part are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
Part 14D Enforceable undertakings
Section 205V
526 Broadcasting Services Act 1992
Part 14D—Enforceable undertakings
205V Simplified outline
The following is a simplified outline of this Part:
• A person may give the ACMA an enforceable undertaking about compliance with this Act or a registered code of practice.
205W Acceptance of undertakings
(1) The ACMA may accept any of the following undertakings: (a) a written undertaking given by a person that the person will,
in order to comply with this Act, take specified action; (b) a written undertaking given by a person that the person will,
in order to comply with this Act, refrain from taking specified action;
(c) a written undertaking given by a person that the person will take specified action directed towards ensuring that the person does not contravene this Act, or is unlikely to contravene this Act, in the future;
(d) a written undertaking given by a person that the person will, in order to comply with a registered code of practice, take specified action;
(e) a written undertaking given by a person that the person will, in order to comply with a registered code of practice, refrain from taking specified action;
(f) a written undertaking given by a person that the person will take specified action directed towards ensuring that the person does not contravene a registered code of practice, or is unlikely to contravene a registered code of practice, in the future.
(2) The undertaking must be expressed to be an undertaking under this section.
Enforceable undertakings Part 14D
Section 205X
Broadcasting Services Act 1992 527
(3) The person may withdraw or vary the undertaking at any time, but only with the consent of the ACMA.
(4) The ACMA may, by written notice given to the person, cancel the undertaking.
(5) The ACMA may publish the undertaking on its website.
205X Enforcement of undertakings
(1) If: (a) a person has given an undertaking under section 205W; and (b) the undertaking has not been withdrawn or cancelled; and (c) the ACMA considers that the person has breached the
undertaking; the ACMA may apply to the Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that the person has breached the undertaking, the court may make any or all of the following orders:
(a) an order directing the person to comply with the undertaking; (b) an order directing the person to pay to the ACMA, on behalf
of the Commonwealth, an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;
(c) any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
(d) any other order that the court considers appropriate.
Part 14E Infringement notices
Section 205XAA
528 Broadcasting Services Act 1992
Part 14E—Infringement notices
205XAA Simplified outline
The following is a simplified outline of this Part:
• This Part sets up a system of infringement notices for contraventions of a designated infringement notice provision as an alternative to the institution of court proceedings.
205XA Formal warning
If an authorised infringement notice officer has reasonable grounds to believe that a person has contravened a designated infringement notice provision, the officer may, by written notice given to the person:
(a) inform the person accordingly; and (b) warn the person that the officer, or another authorised
infringement notice officer, may be entitled to give the person an infringement notice relating to the contravention.
Note: See subsection 205Y(4).
205Y When an infringement notice can be given
(1) If an authorised infringement notice officer has reasonable grounds to believe that a person has contravened a designated infringement notice provision, the officer may give the person an infringement notice relating to the contravention.
(2) The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.
(3) Subsection (1) has effect subject to subsection (4).
(4) An authorised infringement notice officer must not give a person an infringement notice relating to a contravention of a designated infringement notice provision unless the officer, or another
Infringement notices Part 14E
Section 205Z
Broadcasting Services Act 1992 529
authorised infringement notice officer, has previously given a notice to the person under section 205XA in relation to:
(a) the contravention; or (b) a similar contravention.
205Z Matters to be included in an infringement notice
An infringement notice must: (a) set out the name of the person to whom the notice is given;
and (b) set out the name of the person who gave the notice; and (c) set out brief details relating to the alleged contravention of a
designated infringement notice provision, including the date of the alleged contravention; and
(d) contain a statement to the effect that proceedings will not be brought in relation to the alleged contravention if the penalty specified in the notice is paid to the ACMA, on behalf of the Commonwealth, within:
(i) 28 days after the notice is given; or (ii) if the ACMA allows a longer period—that longer
period; and (e) give an explanation of how payment of the penalty is to be
made; and (f) set out the effect of section 205ZB; and (g) set out such other matters (if any) as are specified in the
regulations.
205ZA Amount of penalty
The penalty to be specified in an infringement notice given to a person must be a pecuniary penalty equal to:
(a) if the person is a commercial television broadcasting licensee or a subscription television broadcasting licensee— 60 penalty units; or
(b) in any other case—10 penalty units.
Part 14E Infringement notices
Section 205ZB
530 Broadcasting Services Act 1992
205ZB Withdrawal of an infringement notice
(1) This section applies if an infringement notice is given to a person.
(2) An authorised infringement notice officer may, by written notice (the withdrawal notice) given to the person, withdraw the infringement notice.
(3) To be effective, the withdrawal notice must be given to the person within 28 days after the infringement notice was given.
Refund of penalty if infringement notice withdrawn
(4) If: (a) the penalty specified in the infringement notice is paid; and (b) the infringement notice is withdrawn after the penalty is paid;
the Commonwealth is liable to refund the penalty.
205ZC What happens if the penalty is paid
(1) This section applies if: (a) an infringement notice relating to an alleged contravention of
a designated infringement notice provision is given to a person; and
(b) the penalty is paid in accordance with the infringement notice; and
(c) the infringement notice is not withdrawn.
(2) Any liability of the person for the alleged contravention is discharged.
(3) Proceedings may not be brought against the person for the alleged contravention.
205ZD Effect of this Part on criminal proceedings
This Part does not: (a) require an infringement notice to be given in relation to an
alleged contravention of a designated infringement notice provision; or
Infringement notices Part 14E
Section 205ZE
Broadcasting Services Act 1992 531
(b) affect the liability of a person to have proceedings brought against the person for an alleged contravention of a designated infringement notice provision if:
(i) the person does not comply with an infringement notice relating to the contravention; or
(ii) an infringement notice relating to the contravention is not given to the person; or
(iii) an infringement notice relating to the contravention is given to the person and subsequently withdrawn; or
(c) limit a court’s discretion to determine the amount of a penalty to be imposed on a person who is found in proceedings to have contravened a designated infringement notice provision.
205ZE Appointment of authorised infringement notice officer
The ACMA may, by writing, appoint a member of the staff of the ACMA as an authorised infringement notice officer for the purposes of this Act.
205ZF Regulations
The regulations may make further provision in relation to infringement notices.
Part 15 Miscellaneous
Section 206
532 Broadcasting Services Act 1992
Part 15—Miscellaneous
206 Broadcasting or datacasting taken to be publication in permanent form
For the purposes of the law of defamation, the broadcasting or datacasting of matter is taken to be publication of the matter in a permanent form.
207 Amounts of fees
Where the Minister or the ACMA may determine a fee under this Act, the amount of the fee so determined must not exceed the amount that the Minister or the ACMA estimates to be costs of processing the application, or doing the thing, to which the fee relates.
209 Prosecutions
(1) An offence against this Act may be prosecuted at any time.
(2) A prosecution for an offence against this Act the maximum penalty for which exceeds 500 penalty units for a natural person may be brought only in the Federal Court.
(3) Subsection (2) does not apply to an offence the maximum penalty for which may include a term of imprisonment.
(4) The Federal Court has jurisdiction to hear and determine matters arising under this Act.
210 Publication of opinions
(1) Subject to subsection (2), if the ACMA gives an opinion under section 21 or 74, the ACMA must cause a copy of the opinion to be published in the Gazette.
Miscellaneous Part 15
Section 211
Broadcasting Services Act 1992 533
(2) The ACMA must not publish such an opinion until: (a) in the case of an opinion under section 21—the service to
which it relates has commenced; or (b) in the case of an opinion under section 74—the transaction
has taken place or the contract, agreement or arrangement has been entered into.
211 Service of notices
In addition to other methods of giving a notice to a person, a notice under this Act may be given to a person by telex or by facsimile transmission.
211AA Time when a television program is broadcast—certain terrestrial licence areas
Scope
(1A) This section affects the operation of the following (the affected provisions) in relation to a commercial television broadcasting licence for the Remote Central and Eastern Australia TV1 licence area or the Remote Central and Eastern Australia TV2 licence area:
(a) this Act; (b) any program standards; (c) any other instrument under this Act; (d) any codes of practice registered under section 123.
Nomination of places for services under licence
(1) The licensee of the licence may nominate one or more specified places in the licence area for one or more specified broadcasting services provided under the licence in specified parts of the licence area. Note: A nomination may specify one place for all parts of the licence area.
(2) The nomination must be expressed to be a nomination under subsection (1).
Part 15 Miscellaneous
Section 211A
534 Broadcasting Services Act 1992
Withdrawal of nomination
(3) If a nomination is in force under subsection (1), the licensee may, by written notice given to the ACMA, withdraw the nomination.
(4) The withdrawal of a nomination does not prevent the licensee from making a fresh nomination under subsection (1).
Time when a program is broadcast
(5) The affected provisions have effect, in relation to any programs broadcast in a part of the licence area on a service for which part and service a place is nominated under subsection (1), as if the programs had been broadcast in that part on that service at the legal time they were broadcast in that place on that service.
211A Time when a television program is broadcast—South Eastern Australia TV3 and Northern Australia TV3 licence areas
Nomination of place—South Eastern Australia TV3 licence area
(1) The licensee of a commercial television broadcasting licence allocated under section 38C for the South Eastern Australia TV3 licence area may, by written notice given to the ACMA, nominate either or both of the following:
(a) a specified place in: (i) the South Eastern Australia TV3 licence area; or
(ii) the Northern Australia TV3 licence area; for the purposes of the HDTV multi-channelled commercial television broadcasting services provided under the licence;
(b) a specified place in the South Eastern Australia TV3 licence area for the purposes of the SDTV multi-channelled commercial television broadcasting services provided under the licence.
(2) The nomination must be expressed to be a nomination under subsection (1).
Miscellaneous Part 15
Section 211A
Broadcasting Services Act 1992 535
Nomination of place—Northern Australia TV3 licence area
(3) The licensee of a commercial television broadcasting licence allocated under section 38C for the Northern Australia TV3 licence area may, by written notice given to the ACMA, nominate either or both of the following:
(a) a specified place in: (i) the Northern Australia TV3 licence area; or
(ii) the South Eastern Australia TV3 licence area; for the purposes of the HDTV multi-channelled commercial television broadcasting services provided under the licence;
(b) a specified place in the Northern Australia TV3 licence area for the purposes of the SDTV multi-channelled commercial television broadcasting services provided under the licence.
(4) The nomination must be expressed to be a nomination under subsection (3).
Withdrawal of nomination
(5) If a nomination is in force under subsection (1) or (3), the licensee may, by written notice given to the ACMA, withdraw the nomination.
(6) The withdrawal of a nomination does not prevent the licensee from making a fresh nomination under subsection (1) or (3).
Time when a program is broadcast
(7) If a nomination of a place is in force under paragraph (1)(a) or (3)(a) for the purposes of the HDTV multi-channelled commercial television broadcasting services provided under a licence, then:
(a) this Act; and (b) any program standards; and (c) any other instrument under this Act; and (d) any codes of practice registered under section 123;
have effect, in relation to any programs broadcast on those services, as if those programs had been broadcast in all parts of the licence area at the time that is legal time in the nominated place.
Part 15 Miscellaneous
Section 212
536 Broadcasting Services Act 1992
(8) If a nomination of a place is in force under paragraph (1)(b) or (3)(b) for the purposes of the SDTV multi-channelled commercial television broadcasting services provided under a licence, then:
(a) this Act; and (b) any program standards; and (c) any other instrument under this Act; and (d) any codes of practice registered under section 123;
have effect, in relation to any programs broadcast on those services, as if those programs had been broadcast in all parts of the licence area at the time that is legal time in the nominated place.
Definitions
(9) In this section:
HDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
SDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
212 Special provisions for re-transmission of programs
(1) Subject to this section, the regulatory regime established by this Act does not apply to a service that does no more than:
(a) re-transmit programs that are transmitted by a national broadcasting service; or
(b) re-transmit programs that are transmitted by a commercial broadcasting licensee or a community broadcasting licensee:
(i) within the licence area of that licence; or (ii) outside the licence area of that licence in accordance
with permission in writing given by the ACMA; or (c) re-transmit programs that are transmitted by a service that
does no more than transmit program material supplied by National Indigenous TV Limited.
(2) No action, suit or proceeding lies against a person in respect of the re-transmission by the person of programs as mentioned in subsection (1).
Miscellaneous Part 15
Section 212
Broadcasting Services Act 1992 537
(2A) However, the rule in subsection (2) does not prevent an action, suit or proceeding against a person under the Copyright Act 1968 for infringement of copyright subsisting in a work, a sound recording or a cinematograph film, where:
(a) the infringement is in respect of the re-transmission by the person of programs as mentioned in subsection (1); and
(b) the re-transmission is not provided by a self-help provider.
(2B) The rule in subsection (2) does not prevent an action, suit or proceeding against a person under the Radiocommunications Act 1992 in relation to a breach of any of the conditions of a datacasting transmitter licence.
(2C) The Minister may give the ACMA a written direction about the exercise of the power conferred by subparagraph (1)(b)(ii).
(3) A reference in this section to a re-transmission does not include a reference to:
(a) a re-transmission by a commercial television broadcasting licensee of the programs transmitted by any of the licensee’s commercial television broadcasting services; or
(aa) a re-transmission by a commercial radio broadcasting licensee of the programs transmitted by any of the licensee’s commercial radio broadcasting services; or
(b) a re-transmission by a community broadcasting licensee (other than a designated community radio broadcasting licensee) of the programs transmitted by the licensee’s community broadcasting service; or
(ba) a re-transmission by a designated community radio broadcasting licensee of the programs transmitted by any of the licensee’s community radio broadcasting services; or
(c) a re-transmission by the Australian Broadcasting Corporation of the programs transmitted by any of its national broadcasting services, being national broadcasting services covered by paragraph 13(1)(a); or
(d) a re-transmission by the Special Broadcasting Service Corporation of the programs transmitted by any of its national broadcasting services; or
Part 15 Miscellaneous
Section 212A
538 Broadcasting Services Act 1992
(e) a re-transmission of program material mentioned in paragraph (1)(c) by the licensee who transmitted the program material.
(4) In this section:
cinematograph film has the same meaning as in the Copyright Act 1968.
self-help provider has the meaning given by section 212A.
sound recording has the same meaning as in the Copyright Act 1968.
work has the same meaning as in the Copyright Act 1968.
212A Self-help providers
(1) For the purposes of the application of section 212 to a particular re-transmission of programs, a self-help provider is:
(a) one of the following that provides the re-transmission for the sole or principal purpose of obtaining or improving reception in a small community:
(i) an entity that is registered under the Australian Charities and Not-for-profits Commission Act 2012;
(ii) a not-for-profit entity that is not an ACNC type of entity; or
(b) a local government body which provides the re-transmission for the sole or principal purpose of obtaining or improving reception in a community located in the area served by the body; or
(c) a company which operates a mine and/or related infrastructure at an isolated location and which provides the re-transmission for the sole or principal purpose of obtaining or improving reception in a community:
(i) that is located in the vicinity of the mine or infrastructure, as the case may be; and
(ii) that accommodates the whole or a part of the workforce for the mine or infrastructure, as the case may be; or
Miscellaneous Part 15
Section 212A
Broadcasting Services Act 1992 539
(d) a company which operates a petroleum, oil or gas installation and/or related infrastructure at an isolated location and which provides the re-transmission for the sole or principal purpose of obtaining or improving reception in a community:
(i) that is located in the vicinity of the installation or infrastructure, as the case may be; and
(ii) that accommodates the whole or a part of the workforce for the installation or infrastructure, as the case may be; or
(e) a person who provides the re-transmission within a building or structure for the sole or principal purpose of obtaining or improving reception for persons in the building or structure, as the case may be; or
(f) a person who provides the re-transmission within one or more places that are all in the same area (within the meaning of section 36 of the Telecommunications Act 1997) for the sole or principal purpose of obtaining or improving reception for persons in those places; or
(g) a person who is a declared self-help provider in relation to the re-transmission;
other than: (h) a subscription television broadcasting licensee; or (i) a related body corporate of a subscription television
broadcasting licensee; or (j) a person who is an excluded provider in relation to the
re-transmission.
(2) Nothing in subsection (1) limits the generality of anything else in subsection (1).
(3) Subsection (1) does not limit the generality of anything in section 212B.
(4) In this section:
declared self-help provider has the meaning given by section 212B.
excluded provider has the meaning given by section 212B.
Part 15 Miscellaneous
Section 212B
540 Broadcasting Services Act 1992
isolated location means a place in a State or Territory that is not at a location in, or adjacent to, an eligible urban area (within the meaning of section 140 of the Fringe Benefits Tax Assessment Act 1986).
non-profit body means an incorporated body that: (a) is not carried on for the purposes of profit or gain to its
individual members; and (b) is prohibited by its constituent document from making any
distribution of money or property to its individual members.
related body corporate has the same meaning as in the Corporations Act 2001.
212B Declared self-help providers and excluded providers
Declared self-help providers
(1) The Minister may, by writing, determine that a specified person who provides a re-transmission of programs for the sole or principal purpose of obtaining or improving reception is a declared self-help provider in relation to the re-transmission for the purposes of section 212A.
(2) The Minister may, by writing, determine that a specified person who provides a re-transmission of programs for the sole or principal purpose of obtaining or improving reception in specified circumstances is a declared self-help provider in relation to the re-transmission for the purposes of section 212A.
Excluded providers
(3) The Minister may, by writing, determine that a specified person who provides a re-transmission of programs is an excluded provider in relation to the re-transmission for the purposes of section 212A.
(4) The Minister may, by writing, determine that a specified person who provides a re-transmission of programs in specified circumstances is an excluded provider in relation to the re-transmission for the purposes of section 212A.
Miscellaneous Part 15
Section 213
Broadcasting Services Act 1992 541
Determination has effect
(5) A determination under this section has effect accordingly.
Disallowable instrument
(6) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
213 Penalties for continuing offences
If an offence against this Act is a continuing offence (whether under this Act or because of section 4K of the Crimes Act 1914), the maximum penalty for each day that the offence continues is 10% of the maximum penalty that could be imposed in respect of the principal offence.
214 Procedure relating to continuing offences
(1) Where subsection 66(2), 121FG(2) or 121FHA(2), 121FJC(2), section 136, subsection 138(4), section 140 or subsection 142(5) or subclause 49(2), 50(3), 52(2) or 53(5) of Schedule 6 applies to an offence against a provision of this Act, charges against the same person for any number of offences against that provision may be joined in the same information, complaint or summons if those charges are founded on the same facts or form, or are part of a series of offences of the same or a similar character.
(2) If a person is convicted of 2 or more offences against such a provision, the court may impose one penalty in respect of both or all of those offences, but that penalty must not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence.
215 Guidelines relating to ACMA’s enforcement powers etc.
ACMA’s enforcement powers etc.
(1) In exercising a power conferred on the ACMA by:
Part 15 Miscellaneous
Section 215
542 Broadcasting Services Act 1992
(a) Division 4 of Part 8B; or (b) Part 10, 13, 14B, 14C or 14D; or (c) Part 8 of Schedule 6;
the ACMA must have regard to any relevant guidelines in force under subsection (4).
Power to give infringement notices
(2) In exercising a power conferred on an authorised infringement notice officer by Part 14E, the officer must have regard to any relevant guidelines in force under subsection (4).
Referrals to Director of Public Prosecutions
(3) In deciding whether to refer a matter to the Director of Public Prosecutions for action in relation to a possible offence against this Act, the ACMA must have regard to any relevant guidelines in force under subsection (4).
Formulation of guidelines
(4) The ACMA may, by legislative instrument, formulate guidelines for the purposes of subsections (1), (2) and (3). Note: For consultation requirements, see Part 3 of the Legislative
Instruments Act 2003.
(5) The ACMA must ensure that guidelines relating to the powers conferred on the ACMA by:
(a) Division 4 of Part 8B; or (b) Part 10, 14B or 14D; or (c) Part 8 of Schedule 6;
are in force under subsection (4) at all times after the commencement of this section.
(6) The ACMA must ensure that guidelines relating to the powers conferred on an authorised infringement notice officer by Part 14E are in force under subsection (4) at all times after the commencement of this section.
Miscellaneous Part 15
Section 215B
Broadcasting Services Act 1992 543
215B Review—development and regulation of digital radio broadcasting services and restricted datacasting services
(1) Before 1 January 2014, the Minister must cause to be conducted a review of the following matters:
(a) the development of various terrestrial and satellite technologies capable of transmitting:
(i) digital radio broadcasting services; and (ii) restricted datacasting services;
in Australia; (b) the implementation of those technologies in foreign
countries; (c) the operation of this Act in so far as it deals with the
licensing and regulation of: (i) digital radio broadcasting services; and
(ii) restricted datacasting services.
(2) The Minister must cause to be prepared a report of a review under subsection (1).
(3) The Minister must cause copies of a report to be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the report.
(4) In this section:
digital radio broadcasting service means: (a) a digital commercial radio broadcasting service; or (b) a digital community radio broadcasting service; or (c) a digital national radio broadcasting service.
216 Ministerial consultative and advisory bodies
The Minister may form consultative or advisory bodies to assist the Minister in the administration of this Act.
216A Schedule 4 (digital television broadcasting)
Schedule 4 has effect.
Part 15 Miscellaneous
Section 216B
544 Broadcasting Services Act 1992
216B Schedule 5 (online services)
Schedule 5 has effect.
216C Schedule 6 (datacasting services)
Schedule 6 has effect.
216D Schedule 7 (content services)
Schedule 7 has effect.
217 Regulations
(1) The Governor-General may make regulations prescribing matters: (a) required or permitted to be prescribed by this Act; or (b) necessary or convenient to be prescribed for carrying out or
giving effect to this Act.
(2) The regulations may prescribe penalties, not exceeding 250 penalty units for a company or 50 penalty units for a natural person, for offences against the regulations.
218 Channel sharing
(1) The regulations may make provision for the allocation by the ACMA of additional commercial television broadcasting licences, commercial radio broadcasting licences and community broadcasting licences on the application of an existing licensee.
(2) Those additional licences are: (a) to be allocated to a person other than the licensee; and (b) to allow the provision of broadcasting services with the use
of the same part of the broadcasting services bands or other means of delivery as is used by the licensee.
(3) The provisions of this Act, other than the provisions dealing with advertising for or allocating licences, apply to those additional licences.
Miscellaneous Part 15
Section 218
Broadcasting Services Act 1992 545
(4) If such an additional licence would use a part of the broadcasting services bands being used by a community broadcasting licensee, services under that licence can only be provided with the approval of the ACMA.
Schedule 1 Control and ownership of company interests Part 1 Introduction
Clause 1
546 Broadcasting Services Act 1992
Schedule 1—Control and ownership of company interests
Part 1—Introduction
1 Control—general
(1) This Schedule is intended to provide a means of finding out who is in a position to exercise control of commercial television broadcasting licences, commercial radio broadcasting licences, subscription television broadcasting licences, international broadcasting licences, datacasting transmitter licences, restricted datacasting licences, newspapers and companies and a means of tracing company interests. This Schedule recognises that the concept of control of a licence, a newspaper or a company can be a complex one. The holding of company interests is not the only way to be in a position to exercise control. Clauses 2 and 3 set out the rules for deciding when a position to exercise control exists. While company interests may be important in deciding that question, they are only one issue. In some cases, it may be important to look at agreements and arrangements between people and at accustomed courses of conduct between people. In this respect, the definition of associate in section 6 of this Act is important. A person who has company interests exceeding 15% in a company is regarded as being in a position to control the company. Control of a company may also come about through company interests of 15% or less. This could happen where a person holds company interests of say 10% but no other person holds company interests of more than say 2% and those other persons do not act in concert. A person may be in a position to exercise control of only the media activities of a licensee or a newspaper, but that position is nevertheless to be regarded as a position to exercise control of the licence or the newspaper.
Control and ownership of company interests Schedule 1 Introduction Part 1
Clause 1
Broadcasting Services Act 1992 547
(2) Because of the complexities involved in this area, it is not possible to provide rules which will give a definite answer in all cases. Therefore, the ACMA is given a monitoring role over the broadcasting and datacasting industries and suitable powers of investigation in order to reach a conclusion as to whether a person is in a position to exercise control or not. In order to provide certainty for persons involved in those industries, the ACMA is also given, under section 74, a power to give a binding opinion on the question of control.
Schedule 1 Control and ownership of company interests Part 2 When person is in a position to exercise control
Clause 2
548 Broadcasting Services Act 1992
Part 2—When person is in a position to exercise control
2 When person is in a position to exercise control
(1) For the purposes of this Schedule, a person is in a position to exercise control of a licence or a company if:
(a) the person, either alone or together with an associate of the person, is in a position to exercise control of the licensee or the company; or
(b) in the case of a licence (other than a datacasting transmitter licence or a restricted datacasting licence):
(i) the person is the licensee; or (ii) the person, either alone or together with an associate of
the person, is in a position to exercise (whether directly or indirectly) control of the selection or provision of a significant proportion of the programs broadcast by the licensee; or
(iii) the person, either alone or together with an associate of the person, is in a position to exercise (whether directly or indirectly) control of a significant proportion of the operations of the licensee in providing broadcasting services under the licence; or
(ba) in the case of a datacasting transmitter licence: (i) the person is the licensee; or
(ii) the person, either alone or together with an associate of the person, is in a position to exercise (whether directly or indirectly) control of the selection or provision of a significant proportion of the datacasting content transmitted by the licensee; or
(iii) the person, either alone or together with an associate of the person, is in a position to exercise (whether directly or indirectly) control of a significant proportion of the operations of the licensee in transmitting datacasting services under the licence; or
(bb) in the case of a restricted datacasting licence: (i) the person is the licensee; or
Control and ownership of company interests Schedule 1 When person is in a position to exercise control Part 2
Clause 2
Broadcasting Services Act 1992 549
(ii) the person, either alone or together with an associate of the person, is in a position to exercise (whether directly or indirectly) control of the selection or provision of a significant proportion of the datacasting content provided by the licensee; or
(iii) the person, either alone or together with an associate of the person, is in a position to exercise (whether directly or indirectly) control of a significant proportion of the operations of the licensee in providing restricted datacasting services under the licence; or
(c) in the case of a non-licensee company—the person, either alone or together with an associate of the person, is in a position to exercise (whether directly or indirectly) control of a significant proportion of the operations of the company; or
(d) the person, either alone or together with an associate of the person, is in a position to:
(i) veto any action taken by the board of directors of the licensee or the company; or
(ii) appoint or secure the appointment of, or veto the appointment of, at least half of the board of directors of the licensee or the company; or
(iii) exercise, in any other manner, whether directly or indirectly, direction or restraint over any substantial issue affecting the management or affairs of the licensee or the company; or
(e) the licensee or the company or more than 50% of its directors:
(i) act, or are accustomed to act; or (ii) under a contract or an arrangement or understanding
(whether formal or informal) are intended or expected to act;
in accordance with the directions, instructions or wishes of, or in concert with, the person or of the person and an associate of the person acting together or, if the person is a company, of the directors of the person.
(2) Paragraph (1)(b) does not apply to the provision of programs by a person to a licensee under an agreement for the supply of programs to a licensee if the conditions of the agreement relate only to the programs so supplied or their promotion.
Schedule 1 Control and ownership of company interests Part 2 When person is in a position to exercise control
Clause 2
550 Broadcasting Services Act 1992
(2A) Paragraph (1)(ba) does not apply to the provision of datacasting content by a person to a licensee under an agreement for the supply of datacasting content to the licensee if:
(a) the conditions of the agreement relate only to the datacasting content so supplied or its promotion; and
(b) the content so supplied is a minority of the datacasting content transmitted by the licensee.
(2B) Paragraph (1)(bb) does not apply to the provision of datacasting content by a person to a licensee under an agreement for the supply of datacasting content to the licensee if:
(a) the conditions of the agreement relate only to the datacasting content so supplied or its promotion; and
(b) the content so supplied is a minority of the datacasting content provided by the licensee.
(3) An employee of a licensee or of a non-licensee company is not, except through an association with another person, to be regarded as being in a position to exercise control of a licence or a company under subclause (1) purely because of being an employee.
(4) More than one person may be in a position to exercise control of a licence or a company.
(5) The following are examples of situations that, depending on the circumstances, may be relevant in determining whether a person is in a position to exercise control of 2 or more licences:
(a) the licensees share any or all of the following: (i) equipment;
(ii) studios; (iii) other production facilities; (iv) transmission facilities; (v) human resources;
(vi) other resources; (b) the program content of a substantial percentage of the total
number of hours of programs broadcast under one of those licences is the same as the program content of a substantial percentage of the total number of hours of programs broadcast under the other licence or licences;
(c) the licensees have financial relationships with each other; (d) both of the following subparagraphs apply:
Control and ownership of company interests Schedule 1 When person is in a position to exercise control Part 2
Clause 3
Broadcasting Services Act 1992 551
(i) the person is in a position to exercise control of one or more of the licences;
(ii) the person has a financial relationship with another person who is in a position to exercise control of the other licence or one or more of the other licences.
3 When person is in a position to exercise control of a newspaper
(1) For the purposes of this Schedule, a person is in a position to exercise control of a newspaper if:
(a) the person is the publisher of the newspaper; or (b) the person is in a position, either alone or together with an
associate of the person and whether directly or indirectly: (i) to exercise control of a significant proportion of the
operations of the publisher in publishing the newspaper; or
(ii) to exercise control of the selection or provision of a significant proportion of the material to be published in the newspaper; or
(c) if the newspaper is published by a company: (i) the person is in a position, either alone or together with
an associate of the person, to exercise control of the company; or
(ii) the person, either alone or together with an associate of the person, is in a position to veto any action taken by the board of directors of the company; or
(iii) the person, either alone or together with an associate of the person, is in a position to appoint or secure the appointment of, or veto the appointment of, at least half of the board of directors of the company; or
(iv) the person, either alone or together with an associate of the person, is in a position to exercise, in any other manner, whether directly or indirectly, direction or restraint over any substantial issue affecting the management or affairs of the company; or
(v) the company or more than 50% of its directors: (A) act, or are accustomed to act; or (B) under a contract or an arrangement or
understanding (whether formal or informal) are intended or expected to act;
Schedule 1 Control and ownership of company interests Part 2 When person is in a position to exercise control
Clause 4
552 Broadcasting Services Act 1992
in accordance with the directions, instructions or wishes of, or in concert with, the person or of the person and an associate of the person acting together or, if the person is a company, of the directors of the person.
(2) Subparagraph (1)(b)(ii) does not apply to the provision of material by a person to a newspaper under an agreement for the supply of material of that kind if the conditions of the agreement relate only to the material so supplied.
(3) An employee of the publisher of a newspaper is not, except through an association with another person, to be regarded as being in a position to control the newspaper under subclause (1) purely because of being an employee.
4 Special provisions for authorised lenders
(1) Subject to subclause (2), if an authorised lender has a loan agreement with a media company:
(a) the agreement; and (b) any other agreement or transaction that is:
(i) associated with the loan agreement; and (ii) entered into in the ordinary course of carrying on a
business of providing financial accommodation; and (c) anything done under the loan agreement or under an
agreement or transaction referred to in paragraph (b), being a thing done in the ordinary course of carrying on a business of providing financial accommodation;
are to be disregarded in deciding whether the lender or any controller of the lender is in a position to exercise control of the media company or of any licence or newspaper of which the media company is in a position to exercise control.
(2) Subclause (1) does not apply in relation to being in a position to exercise control of a licence if the lender or a controller of the lender:
(a) prevents the licensee from complying with a condition of the licence; or
(b) in the case of a licensee other than a datacasting transmitter licensee or a restricted datacasting licensee—controls the selection or provision of any of the programs to be broadcast by the licensee; or
Control and ownership of company interests Schedule 1 When person is in a position to exercise control Part 2
Clause 4
Broadcasting Services Act 1992 553
(ba) in the case of a datacasting transmitter licensee—controls the selection or provision of any of the datacasting content to be transmitted by the licensee; or
(bb) in the case of a restricted datacasting licensee—controls the selection or provision of any of the datacasting content to be provided by the licensee; or
(c) appoints or secures the appointment of at least half of the board of directors of the licensee; or
(d) vetoes the appointment of at least half of the board of directors of the licensee otherwise than:
(i) under a loan agreement or an agreement or transaction referred to in paragraph (1)(b); and
(ii) in the ordinary course of carrying on a business of providing financial accommodation.
(3) Subclause (1) does not apply in relation to being in a position to exercise control of a newspaper if the lender or a controller of the lender:
(a) controls the selection or provision of any of the material to be published in the newspaper; or
(b) appoints or secures the appointment of at least half of the board of directors of the media company that publishes the newspaper; or
(c) vetoes the appointment of at least half of the board of directors of the media company that publishes the newspaper otherwise than:
(i) under a loan agreement or an agreement or transaction referred to in paragraph (1)(b); and
(ii) in the ordinary course of carrying on a business of providing financial accommodation.
(4) In this clause:
authorised lender means: (a) an ADI (authorised deposit-taking institution) within the
meaning of the Banking Act 1959; or (b) a corporation formed under the law of a State or Territory to
carry on the business of banking within Australia; or
Schedule 1 Control and ownership of company interests Part 2 When person is in a position to exercise control
Clause 4
554 Broadcasting Services Act 1992
(c) a corporation whose sole or principal business is the provision of financial accommodation to other persons, being a corporation:
(i) that is a registered entity under the Financial Sector (Collection of Data) Act 2001; or
(ii) in respect of which a declaration under subclause (5) is in force; or
(iii) in respect of which an application for such a declaration has been made but not finally disposed of.
controller, in relation to an authorised lender, means a person who is in a position to exercise control of the lender.
loan agreement, in relation to a company, means an agreement entered into in the ordinary course of carrying on a business of providing financial accommodation under which:
(a) financial accommodation is provided to the company; or (b) money is deposited with the company; or (c) a debt or liability (whether or not financial) of the company
arises; whether or not:
(d) the financial accommodation, money, debt or liability is secured; or
(e) money payable by the company under the agreement is presently payable; or
(f) liability arising under the agreement is unconditional.
media company means: (a) a company that holds a commercial television broadcasting
licence or a commercial radio broadcasting licence; or (b) a company that holds a subscription television broadcasting
licence; or (ba) a company that holds an international broadcasting licence;
or (bb) a company that holds a datacasting transmitter licence; or (bc) a company that holds a restricted datacasting licence; or (c) a company that publishes a newspaper; or (d) a company that is in a position to exercise control of such a
company.
Control and ownership of company interests Schedule 1 When person is in a position to exercise control Part 2
Clause 4
Broadcasting Services Act 1992 555
(5) The ACMA may, in writing, declare a corporation (whether formed inside or outside Australia) whose sole or principal business is the provision of financial accommodation to other persons to be an authorised lender for the purposes of this clause.
Schedule 1 Control and ownership of company interests Part 3 Deemed control
Clause 5
556 Broadcasting Services Act 1992
Part 3—Deemed control
5 Explanation of examples
In an example in this Part, a percentage written next to an arrow indicates that the person before the arrow has company interests in the company to which the arrow is pointing which exceeds that percentage.
6 The 15% rule
(1) If a person has company interests in a company exceeding 15%, the person is to be regarded as being in a position to exercise control of the company.
7 Application of method through chain of companies
The method described in clause 6 can be applied in the case of a chain of companies. Where a company interest of more than 15% is maintained throughout the chain, the person is to be regarded as being in a position to exercise control of the last company in the chain.
Example:
Here the person is to be regarded as being in a position to exercise control of Company D.
Co. DCo. CCo. B 15% 15% 15% 15%
Co. APerson
Control and ownership of company interests Schedule 1 Tracing of ownership Part 4
Clause 8
Broadcasting Services Act 1992 557
Part 4—Tracing of ownership
8 Tracing of ownership
Company interests can be traced through a chain of companies using a method known as the fractional tracing method. This method applies a formula to decide what company interest a person has. This method is best demonstrated by an example.
Example:
The person’s company interest in Company B is worked out using the formula:
where:
Company Interest 1 is the company interest of the person, expressed as a fraction, in Company A.
Company Interest 2 is the company interest of Company A, expressed as a fraction, in Company B. In this case, the formula produces: 3/10 X 1/10, which means that the person has a 3% company interest in Company B. Interests traced in this way can be added. If Company B is a licensee and the person had, through other chains of companies, a further 12.5% company interest in Company B, the person would be regarded as being in a position to exercise control of Company B under Part 3 of this Schedule because the person would have company interests exceeding 15% in Company B.
Co. B 10%30%
Co. APerson
Schedule 1 Control and ownership of company interests Part 4 Tracing of ownership
Clause 8
558 Broadcasting Services Act 1992
Example:
In this example, the person has a 15.5% company interest in Company B. This is made up of 3% (through Company A), 8% (through Company C) and 4.5% (through Company D). This method of tracing ownership may be used through any number of companies. However, the ACMA is not required to trace every minor company interest.
COMPANY C COMPANY D
80%
10% 10%
45%
PERSON
COMPANY B (LICENSEE)
COMPANY A
Standard conditions Schedule 2 Interpretation Part 1
Clause 1
Broadcasting Services Act 1992 559
Schedule 2—Standard conditions
Part 1—Interpretation
1 Definitions
In this Schedule:
Classification Board means the Classification Board established by the Classification (Publications, Films and Computer Games) Act 1995.
election means an election to a Parliament or a local government authority of a State or Territory.
election advertisement, in relation to an election, means: (a) an advertisement:
(i) that contains election matter that relates to that election; and
(ii) in respect of the broadcasting of which the relevant licensee has received or is to receive, directly or indirectly, any money or other consideration; or
(b) an announcement containing a statement to the effect that a program that is to be or has been broadcast is or was sponsored by a person or persons and indicating that the person is a candidate, or one or more of the persons is or are candidates, at the election; or
(c) an announcement containing a statement to the effect that a program that is to be or has been broadcast is or was sponsored by a particular political party where a candidate at the election belongs to that party.
election matter, in relation to an election, means matter of any of the following kinds:
(a) matter commenting on, or soliciting votes for, a candidate at the election;
(b) matter commenting on, or advocating support of, a political party to which a candidate at the election belongs;
(c) matter commenting on, stating or indicating any of the matters being submitted to the electors at the election or any
Schedule 2 Standard conditions Part 1 Interpretation
Clause 1
560 Broadcasting Services Act 1992
part of the policy of a candidate at the election or of the political party to which a candidate at the election belongs;
(d) matter referring to a meeting held or to be held in connection with the election.
election period means: (a) in relation to an election to the Legislative Council of
Tasmania, or an ordinary election to the Legislative Assembly for the Australian Capital Territory—the period that starts 33 days before the polling day for the election and ends at the close of the poll on that day; and
(b) in relation to any other election to a Parliament—the period that starts on:
(i) the day on which the proposed polling day for the election is publicly announced; or
(ii) the day on which the writs for the election are issued; whichever happens first, and ends at the close of the poll on the polling day for the election; and
(c) in relation to an election to a local government authority— the period that starts 33 days before the polling day for the election and ends at the close of the poll on that day; and
(d) in relation to a referendum whose voting day is the same as the polling day for an election to the Parliament of the Commonwealth—the election period in relation to that election; and
(e) in relation to any other referendum—the period that starts 33 days before the voting day for the referendum and ends at the close of voting on that day.
person includes a political party, a corporation and any other association (whether incorporated or unincorporated).
political matter means any political matter, including the policy launch of a political party.
radiocommunications device has the same meaning as in the Radiocommunications Act 1992.
referendum means the submission to the electors of a proposed law for the alteration of the Constitution, whether or not the proposal to make the submission has been announced.
Standard conditions Schedule 2 Interpretation Part 1
Clause 1
Broadcasting Services Act 1992 561
relevant period, in relation to an election, means the period that commences at the end of the Wednesday before the polling day for the election and ends at the close of the poll on that polling day.
required particulars, in relation to a political matter that is broadcast, means:
(a) if the broadcasting was authorised by a political party: (i) the name of the political party; and
(ii) the town, city or suburb in which the principal office of the political party is situated; and
(iii) the name of the natural person responsible for giving effect to the authorisation; and
(b) if the broadcasting of the political matter was authorised by a person other than a political party:
(i) the name of the person who authorised the broadcasting of the political matter; and
(ii) the town, city or suburb in which the person lives or, if the person is a corporation or association, in which the principal office of the person is situated; and
(c) the name of every speaker who, either in person or by means of a sound recording device, delivers an address or makes a statement that forms part of that matter.
required period, in relation to the keeping of a record in relation to political matter, means:
(a) subject to paragraph (b), the period of 6 weeks commencing on the day on which the matter was broadcast; or
(b) if the matter relates to an election or referendum and was broadcast during the election period in relation to the election or referendum—the period commencing on the day on which the matter was broadcast and ending:
(i) at the end of the period referred to in paragraph (a); or (ii) if that period ends before the end of the election period
in relation to the election or referendum—the day on which that election period ends;
or such longer period as the ACMA, before the end of that period, directs by notice in writing to the broadcaster concerned.
Schedule 2 Standard conditions Part 1 Interpretation
Clause 2
562 Broadcasting Services Act 1992
2 Interpretation—certain things do not amount to broadcasting of advertisements
(1) For the purposes of this Schedule (other than paragraphs 7(1)(a), 8(1)(a), 9(1)(a), 10(1)(a) and 11(1)(a)), a person is not taken to broadcast an advertisement if:
(a) the person broadcasts matter of an advertising character as an accidental or incidental accompaniment to the broadcasting of other matter; and
(b) the person does not receive payment or other valuable consideration for broadcasting the advertising matter.
(2) For the purposes of this Schedule (other than paragraph 9(1)(a)), the broadcasting by a community broadcasting licensee of:
(a) community information material or community promotional material; or
(b) a sponsorship announcement that acknowledges financial support by a person of the licensee or of a program broadcast on a service provided under the licence, whether or not the announcement:
(i) specifies the name and address of, and a description of the general nature of any business or undertaking carried on by the person; or
(ii) promotes activities, events, products, services or programs of the person; or
(c) material that announces or promotes a service provided under the licence, including material (whether by way of the announcement or promotion of activities, events, products, services or otherwise) that is likely to induce public support, whether financially or otherwise, or to make use of, the service or services provided under the licence;
is not taken to be the broadcasting of an advertisement.
Standard conditions Schedule 2 Special conditions Part 2
Clause 3
Broadcasting Services Act 1992 563
Part 2—Special conditions
3 Broadcasting of political or controversial material
(1) In this clause, broadcaster means: (a) a commercial television broadcasting licensee; or (b) a commercial radio broadcasting licensee; or (c) a community broadcasting licensee; or (d) a subscription television broadcasting licensee; or (e) a person providing broadcasting services under a class
licence.
(2) If, during an election period, a broadcaster broadcasts election matter, the broadcaster must give reasonable opportunities for the broadcasting of election matter to all political parties contesting the election, being parties which were represented in either House of the Parliament for which the election is to be held at the time of its last meeting before the election period.
(3) This clause does not require a broadcaster to broadcast any matter free of charge.
3A Broadcasting of election advertisements
(1) In this clause, broadcaster means: (a) a commercial television broadcasting licensee; or (b) a commercial radio broadcasting licensee; or (c) a community broadcasting licensee; or (d) a subscription television broadcasting licensee; or (e) a person providing broadcasting services under a class
licence.
(2) If: (a) a broadcaster has a licence that has a licence area; and (b) an election to a Parliament is to be held; and (c) the licence area overlaps, contains or is contained in the area
of Australia to which the election relates; the broadcaster must not broadcast under the licence an election advertisement in relation to the election during the relevant period.
Schedule 2 Standard conditions Part 2 Special conditions
Clause 4
564 Broadcasting Services Act 1992
(3) If: (a) a broadcaster has a licence that does not have a licence area;
and (b) an election to a Parliament is to be held; and (c) a broadcasting service under the licence is normally received
in the area of Australia to which the election relates; the broadcaster must not broadcast an election advertisement in relation to the election during the relevant period as part of that service.
(4) If: (a) a broadcaster provides a broadcasting service under a class
licence; and (b) an election to a Parliament is to be held; and (c) the broadcasting service is normally received in the area of
Australia to which the election relates; the broadcaster must not broadcast an election advertisement in relation to the election during the relevant period as part of the service.
4 Identification of certain political matter
(1) In this clause, broadcaster means: (a) a commercial television broadcasting licensee; or (b) a commercial radio broadcasting licensee; or (c) a community broadcasting licensee; or (d) a subscription television broadcasting licensee; or (e) a person providing broadcasting services under a class
licence.
(2) If a broadcaster broadcasts political matter at the request of another person, the broadcaster must, immediately afterwards, cause the required particulars in relation to the matter to be announced in a form approved in writing by the ACMA.
(3) A broadcaster must, in relation to political matter broadcast at the request of another person, keep a record of the name, address and occupation of the person or, if the person is a company, the name and the address of the principal office of the person for the required period and must give to the ACMA any particulars of the record that the ACMA, by written notice, requires.
Standard conditions Schedule 2 Special conditions Part 2
Clause 5
Broadcasting Services Act 1992 565
(4) For the purposes of this clause, a person authorises the broadcasting of political matter only if the person is responsible for approval of the content of the political matter and the decision to present it for broadcasting.
5 Records of matter broadcast
(1) In this clause, broadcaster means: (a) a commercial television broadcasting licensee; or (b) a commercial radio broadcasting licensee; or (c) a community broadcasting licensee; or (d) a subscription television broadcasting licensee; or (e) a person providing broadcasting services under a class
licence.
(2) If a broadcaster broadcasts matter relating to a political subject or current affairs, being matter that is in the form of news, an address, a statement, a commentary or a discussion, the broadcaster must cause a record of the matter to be made in a form approved in writing by the ACMA.
(3) Subject to this clause, a broadcaster must retain in his or her custody a record so made for a period of:
(a) 6 weeks from the date on which the matter was broadcast; or (b) if a complaint has been made about the matter—for 60 days
from the date on which the matter was broadcast; or for such longer period as the ACMA, in special circumstances, directs in writing.
(4) If a person considers that a record so made is admissible in evidence in proceedings instituted, or proposed to be instituted, in a court, being a record that is held under subclause (3), the person may give to the broadcaster a notice in writing informing the broadcaster that the record may be required for the purposes of the proceedings.
(5) If such a notice is given to a broadcaster in respect of a record, the broadcaster must, subject to this clause, retain the record until the proceedings or the proposed proceedings to which the notice relates have been finally determined.
Schedule 2 Standard conditions Part 2 Special conditions
Clause 6
566 Broadcasting Services Act 1992
(6) If the proceedings are not instituted within a period of 3 months after the notice is given to the broadcaster, subclause (5) ceases to apply to the record at the end of that period.
(7) The obligation imposed by this clause on a broadcaster to retain a record does not apply at any time when the record is in the custody of a court in connection with proceedings instituted in the court.
(8) If the ACMA is of the opinion that a matter of which a record has been made under this clause is of sufficient historic interest to justify its being permanently preserved, the ACMA may direct in writing a person who has custody of the record to deliver it for safe keeping to a person or authority specified by the ACMA, and the person to whom the direction is given must comply with the direction but is entitled to fair compensation.
(9) A broadcaster must, without charge, make available to the ACMA, upon request, any specified record made by the broadcaster under subclause (2) that has been retained by the broadcaster (whether or not the broadcaster is, at the time of the request, under an obligation to retain the record).
6 Advertisements relating to medicines
(1) In this clause, broadcaster means: (a) a commercial television broadcasting licensee; or (b) a commercial radio broadcasting licensee; or (c) a subscription television broadcasting licensee; or (d) a person providing broadcasting services under a class
licence.
(2) A broadcaster must not broadcast an advertisement relating to therapeutic goods that is required to be approved under the Therapeutic Goods Act 1989 unless the text of the advertisement has been so approved.
Standard conditions Schedule 2 Commercial television broadcasting licences Part 3
General Division 1
Clause 7
Broadcasting Services Act 1992 567
Part 3—Commercial television broadcasting licences
Division 1—General
7 Conditions of commercial television broadcasting licences
(1) Each commercial television broadcasting licence is subject to the following conditions:
(a) the licensee will not, in contravention of the Tobacco Advertising Prohibition Act 1992, broadcast a tobacco advertisement within the meaning of that Act;
(aa) the licensee will comply with section 121G (which deals with Australian content);
(b) the licensee will comply with program standards applicable to the licence under Part 9 of this Act;
(ba) the licensee will comply with subsection 130V(1) (which deals with industry standards);
(c) except in the case of a licence allocated under section 38C or subsection 40(1)—the articles of association of the licensee will at all times contain provisions under which:
(i) a person is not eligible to continue to be the holder of shares in the licensee if, because of holding those shares and of any other relevant circumstances, that or some other person would contravene Part 5 of this Act; and
(ii) the licensee may secure the disposal of shares held by a person to the extent necessary to prevent a contravention of Part 5 of this Act continuing or of shares held by a person who refuses or fails to provide a statutory declaration under the provisions referred to in subparagraph (iii) or (iv); and
(iii) a person who becomes the holder of shares in the licensee is required to provide to the company a statutory declaration stating whether the shares are held by the person beneficially and, if not, who has beneficial interests in the shares and stating whether the person, or any person who has a beneficial interest in the shares, is in a position to exercise control of another licence, and giving particulars of any such position; and
Schedule 2 Standard conditions Part 3 Commercial television broadcasting licences Division 1 General
Clause 7
568 Broadcasting Services Act 1992
(iv) a person holding shares in the licensee may be required by the licensee, from time to time, to provide to the licensee statutory declarations concerning matters relevant to his or her eligibility to continue to be the holder of those shares having regard to the provisions of Part 5 of this Act;
(d) the licensee will, if the Minister, by notice in writing given to the licensee, so requires broadcast, without charge, such items of national interest as are specified in the notice;
(e) the licensee will, if the Minister notifies the licensee in writing that an emergency has arisen which makes it important in the public interest that persons authorised by the Minister have control over matter broadcast using the licensee's broadcasting facilities, allow those persons access to and control over those facilities;
(f) if the licence is a broadcasting services bands licence—the licensee will keep in force a licence under the Radiocommunications Act 1992 that authorises operation by the licensee of the radiocommunications devices used to provide broadcasting services;
(g) the licensee will not broadcast a program that has been classified RC or X 18+ by the Classification Board;
(ga) the licensee will not broadcast films that are classified as “R 18+” unless the films have been modified as mentioned in paragraph 123(3A)(b);
(h) the licensee will not use broadcasting services in the commission of an offence against another Act or a law of a State or Territory;
(ha) the licensee will not contravene the anti-hoarding rule (within the meaning of section 146E);
(i) the licensee will commence to provide at least one broadcasting service within one year of being allocated the licence or within such longer period as is notified in writing by the ACMA;
(ia) the licensee will comply with the requirements set out in section 205B;
(j) the licensee will comply with the requirements of clauses 3, 3A, 4, 5 and 6.
Standard conditions Schedule 2 Commercial television broadcasting licences Part 3
General Division 1
Clause 7
Broadcasting Services Act 1992 569
(k) the licensee will comply with the requirements of the commercial television conversion scheme in force under clause 6 of Schedule 4 other than either of the following requirements:
(i) a requirement covered by paragraph 6(3)(a) or (b) of that Schedule;
(ii) a requirement of Part B of the scheme to commence digital transmission;
(l) the licensee will comply with so much of an implementation plan:
(i) given by the licensee to the ACMA in accordance with the commercial television conversion scheme in force under clause 6 of Schedule 4; and
(ii) approved by the ACMA; as does not relate to either of the following requirements: (iii) a requirement covered by paragraph 6(3)(a) or (b) of
that Schedule; (iv) a requirement of Part B of the commercial television
conversion scheme to commence digital transmission; (m) if there is a simulcast period for the licence area of the
licence—the licensee will not broadcast, on the core commercial television broadcasting service, a television program in SDTV digital mode during the simulcast period for the licence area unless the program is broadcast simultaneously by the licensee in analog mode in so much of that area as is not a digital-only local market area;
(ma) subject to subclauses (4C), (5), (6) and (7), if there is a simulcast period for the licence area of the licence—the licensee will provide a HDTV multi-channelled commercial television broadcasting service during the simulcast period for the licence area;
(mb) subject to subclauses (4C), (5) and (7), if: (i) there is a simulcast-equivalent period for the licence
area of the licence; and (ii) under the regulations, the licensee is required to provide
a HDTV multi-channelled commercial television broadcasting service in the licence area during that period;
the licensee will comply with that requirement;
Schedule 2 Standard conditions Part 3 Commercial television broadcasting licences Division 1 General
Clause 7
570 Broadcasting Services Act 1992
(mc) subject to subclauses (4C), (5), (6) and (7), if: (i) the licence was allocated under section 38A or 38B; and
(ii) there is a simulcast-equivalent period for the licence area of the licence;
the licensee will provide a HDTV multi-channelled commercial television broadcasting service during the simulcast-equivalent period for the licence area;
(na) the licensee will comply with standards applicable to the licence under Division 2 of Part 4 of Schedule 4 (which deals with HDTV);
(nb) if subclause 37E(1) of Schedule 4 (which deals with HDTV quotas) applies to the licensee—the licensee will comply with that subclause;
(o) if a provision of Part 9D (which deals with captioning of television programs for the deaf and hearing impaired) applies to the licensee—the licensee will comply with that provision;
(oa) the licensee will comply with any standards under section 130A (which deals with technical standards for digital transmission);
(ob) if a clause of Division 1 of Part 4A of Schedule 4 (which imposes restrictions on the televising of anti-siphoning events) applies to the licensee—the licensee will comply with that clause;
(p) if the licensee holds a transmitter licence under section 101B, 101C, 102 or 102A of the Radiocommunications Act 1992 that authorises the operation of a transmitter—the licensee will not operate, or permit the operation of, that transmitter to transmit in digital mode:
(i) a commercial broadcasting service that provides radio programs; or
(ii) a subscription radio broadcasting service; or (iii) a subscription television broadcasting service; or (iv) a subscription radio narrowcasting service; or (v) a subscription television narrowcasting service; or
(vi) an open narrowcasting radio service; or (vii) an open narrowcasting television service;
Standard conditions Schedule 2 Commercial television broadcasting licences Part 3
General Division 1
Clause 7
Broadcasting Services Act 1992 571
(q) the licensee will comply with a requirement that is applicable to the licensee under section 61BB (which deals with the disclosure of cross-media relationships);
(r) the licensee will not use the part of the radiofrequency spectrum covered by paragraph (b) of the definition of broadcasting services bands in subsection 6(1) to provide a commercial television broadcasting service under the licence;
(s) if a television licence area plan applies to the licence area— the licensee will comply with subsection 26AA(1).
(2) Each commercial television broadcasting licence is also subject to the following conditions:
(a) except in a case where the licence was allocated under section 38C or subsection 40(1)—the licensee will provide a service or services that, when considered together with other broadcasting services available in the licence area of the licence (including another service or services operated by the licensee), contributes to the provision of an adequate and comprehensive range of broadcasting services in that licence area;
(b) the licensee will remain a suitable licensee; (c) except in a case where the licence was allocated under
section 38C or subsection 40(1)—the licensee will broadcast matter of a religious nature during such periods as the ACMA determines and, if the ACMA so directs, will do so without charge;
(2A) Each commercial television broadcasting licence is also subject to the condition that the licensee will not provide commercial television broadcasting services under the licence outside the licence area of the licence unless:
(a) the provision of those services outside that licence area occurs accidentally; or
(b) the provision of those services outside that licence area occurs as a necessary result of the provision of commercial television broadcasting services within the licence area; or
(c) both: (i) the licensee satisfies the ACMA that the provision of
those services outside that licence area occurs in exceptional circumstances; and
(ii) the ACMA has given permission in writing; or
Schedule 2 Standard conditions Part 3 Commercial television broadcasting licences Division 1 General
Clause 7
572 Broadcasting Services Act 1992
(d) all of the following subparagraphs apply: (i) the first-mentioned licensee satisfies the ACMA that
there is a person (the eligible person) who is in a commercial television broadcasting licence area (the second licence area) that is not the same as the first-mentioned licence area and who is not receiving adequate reception of a commercial television broadcasting service or services provided by a commercial television broadcasting licensee for the second licence area;
(ii) the provision of the first-mentioned services outside the first-mentioned licence area occurs only to the extent necessary to provide adequate reception of the first-mentioned services to the eligible person;
(iii) the ACMA has given permission in writing.
(4) Subclause 6(8) of Schedule 4 applies to paragraph (1)(m) of this clause in a corresponding way to the way in which it applies to paragraph 6(3)(c) of Schedule 4 and subclause 6(7) of Schedule 4.
(4A) For the purposes of paragraphs (1)(k) and (m), if: (a) a transmitter licence was issued under section 100 of the
Radiocommunications Act 1992; and (b) the transmitter licence authorises the operation of one or
more transmitters for transmitting one or more commercial television broadcasting services in digital mode;
ignore any transmission of those services in digital mode by those transmitters.
(4B) For the purposes of paragraphs (1)(k) and (m), ignore the broadcast of a commercial television broadcasting service in analog mode in a digital-only local market area if:
(a) the broadcast of the service in the digital-only local market area occurs accidentally; or
(b) the broadcast of the service in the digital-only local market area occurs as a necessary result of the provision of commercial television broadcasting services outside the digital-only local market area.
(4C) Paragraphs (1)(ma), (mb) and (mc) do not apply to a commercial television broadcasting service provided by a licensee to the extent to which the service is provided in an area that, under clause 9A of
Standard conditions Schedule 2 Commercial television broadcasting licences Part 3
General Division 1
Clause 7
Broadcasting Services Act 1992 573
Schedule 4, is an exempt digital transmission area in relation to the licence.
(5) Paragraphs (1)(ma), (mb) and (mc) do not apply to a licence if a commercial television broadcasting service provided under the licence is transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(8) of Schedule 4.
(6) Paragraphs (1)(ma) and (mc) do not apply to a licence if: (a) the licensee provides a commercial television broadcasting
service under the licence; and (b) an election under subclause 6(5A) or (5AA) of Schedule 4 is
in force for the service.
(7) Paragraphs (1)(ma), (mb) and (mc) do not apply to a licence if: (a) the licensee provides an exempt remote area service under
the licence; and (b) an election under subclause 6(7B) of Schedule 4 is in force
for the service.
(8) An expression used in: (a) paragraph (1)(m), (ma), (mb), (mc) or (p) or subclause (4A),
(4B), (5), (6) or (7); and (b) Schedule 4;
has the same meaning in that paragraph or subclause as it has in that Schedule.
Schedule 2 Standard conditions Part 3 Commercial television broadcasting licences Division 2 Licences allocated under section 38C
Clause 7A
574 Broadcasting Services Act 1992
Division 2—Licences allocated under section 38C
7A Common conditions
(1) A licence allocated under section 38C is subject to the following conditions:
(a) the licensee may only provide commercial television broadcasting services in digital mode (within the meaning of Schedule 4);
(b) the licensee may only provide commercial television broadcasting services with the use of a satellite;
(c) if a conditional access scheme for the licence area is registered under Part 9C—the licensee will ensure that any conditional access system that relates to any of the commercial television broadcasting services provided under the licence complies with the scheme;
(d) the licensee will comply with any standards under section 130AC (which deals with technical standards for digital transmission).
(2) Paragraphs 7(1)(i) and (oa) of this Schedule do not apply to a licence allocated under section 38C.
7B Conditions about the provision of core/primary commercial television broadcasting services
Conditions about the provision of core/primary services
(1) A licence allocated under section 38C is subject to the condition that, if there are at least 3 commercial television broadcasting services (the related terrestrial core/primary services), where each of the services:
(a) is provided by a terrestrial licensee in a related terrestrial licence area; and
(b) is a core/primary commercial television broadcasting service; and
(c) is distinct from each of the other services; the section 38C licensee will provide at least 3 commercial television broadcasting services, where:
Standard conditions Schedule 2 Commercial television broadcasting licences Part 3
Licences allocated under section 38C Division 2
Clause 7B
Broadcasting Services Act 1992 575
(d) the program content of each of the services is the same, or substantially the same, as the program content of a related terrestrial core/primary service; and
(e) each of the services is distinct from each of the other services.
(2) A licence allocated under section 38C is subject to the condition that, if there are only 2 commercial television broadcasting services (the related terrestrial core/primary services), where each of the services:
(a) is provided by a terrestrial licensee in a related terrestrial licence area; and
(b) is a core/primary commercial television broadcasting service; and
(c) is distinct from the other service; the section 38C licensee will provide:
(d) 2 commercial television broadcasting services, where: (i) the program content of each of the services is the same,
or substantially the same, as the program content of a related terrestrial core/primary service; and
(ii) the services are distinct from one another; and (e) one commercial television broadcasting service, where:
(i) the program content of the service is the same, or substantially the same, as the program content of a core/primary commercial television broadcasting service provided by a terrestrial licensee in a metropolitan licence area; and
(ii) the service is distinct from each of the services required to be provided by paragraph (d).
(3) A licence allocated under section 38C is subject to the condition that, if:
(a) neither subclause (1) nor subclause (2) applies; and (b) there is a commercial television broadcasting service (the
related terrestrial core/primary service), where: (i) the service is provided by a terrestrial licensee in a
related terrestrial licence area; and (ii) the service is a core/primary commercial television
broadcasting service; the section 38C licensee will provide:
Schedule 2 Standard conditions Part 3 Commercial television broadcasting licences Division 2 Licences allocated under section 38C
Clause 7B
576 Broadcasting Services Act 1992
(c) one commercial television broadcasting service that has program content that is the same, or substantially the same, as the program content of the related terrestrial core/primary service; and
(d) 2 commercial television broadcasting services, where: (i) the program content of each of the services is the same,
or substantially the same, as the program content of a core/primary commercial television broadcasting service provided by a terrestrial licensee in a metropolitan licence area; and
(ii) the services are distinct from each other and from the service required to be provided by paragraph (c).
Services not required before start date
(4) Subclauses (1), (2) and (3) do not require a licensee to provide a service before the start date for the licence area. Note: For start date, see clause 7H.
Exemption—cessation of related terrestrial core/primary service
(5) If: (a) in compliance with subclause (1), the licensee of a licence
allocated under section 38C provides a commercial television broadcasting service that has the same, or substantially the same, program content as a core/primary commercial television broadcasting service provided by a terrestrial licensee in a related terrestrial licence area; and
(b) the core/primary commercial television broadcasting service ceases to be provided by the terrestrial licensee in the related terrestrial licence area; and
(c) as a result of the cessation of the service, subclause (2) applies to the section 38C licensee;
subclause (2) has effect in relation to the section 38C licensee, while the cessation continues, as if paragraph (2)(e) had not been enacted.
(6) If: (a) in compliance with subclause (2), the licensee of a licence
allocated under section 38C provides a commercial television broadcasting service that has the same, or substantially the
Standard conditions Schedule 2 Commercial television broadcasting licences Part 3
Licences allocated under section 38C Division 2
Clause 7C
Broadcasting Services Act 1992 577
same, program content as a core/primary commercial television broadcasting service provided by a terrestrial licensee in a related terrestrial licence area; and
(b) the core/primary commercial television broadcasting service ceases to be provided by the terrestrial licensee in the related terrestrial licence area; and
(c) as a result of the cessation of the service, subclause (3) applies to the section 38C licensee;
then, while the cessation continues: (d) subclause (3) has effect in relation to the section 38C licensee
as if paragraph (3)(d) had not been enacted; and (e) the section 38C licence is subject to the condition that the
section 38C licensee will provide one commercial television broadcasting service, where:
(i) the program content of the service is the same, or substantially the same, as the program content of a core/primary commercial television broadcasting service provided by a terrestrial licensee in a metropolitan licence area; and
(ii) the service is distinct from the service required to be provided by paragraph (3)(c).
Distinct services
(7) For the purposes of this clause, a commercial television broadcasting service is distinct from another commercial television broadcasting service if, and only if, the program content of the services is not the same or substantially the same. Note: For metropolitan licence area, related terrestrial licence area and
terrestrial licence, see clause 7L.
7C Conditions about the provision of non-core/primary commercial television broadcasting services
HDTV multi-channelled commercial television broadcasting services
(1) A licence allocated under section 38C is subject to the condition that, if:
(a) the licensee of a terrestrial licence for a metropolitan licence area provides a HDTV multi-channelled commercial
Schedule 2 Standard conditions Part 3 Commercial television broadcasting licences Division 2 Licences allocated under section 38C
Clause 7C
578 Broadcasting Services Act 1992
television broadcasting service (the metropolitan service) in the metropolitan licence area; and
(b) the licensee of a terrestrial licence for a related terrestrial licence area provides a HDTV multi-channelled commercial television broadcasting service (the related terrestrial service) in the related terrestrial licence area; and
(c) the related terrestrial service has the same, or substantially the same, program content as the metropolitan service;
the section 38C licensee will provide a HDTV multi-channelled commercial television broadcasting service that has the same, or substantially the same, program content as the related terrestrial service.
(2) A licence allocated under section 38C is subject to the condition that, if:
(a) the licensee of a terrestrial licence for a metropolitan licence area provides a HDTV multi-channelled commercial television broadcasting service (the metropolitan service) in the metropolitan licence area; and
(b) there is no HDTV multi-channelled commercial television broadcasting service that:
(i) is provided by the licensee of a terrestrial licence for a related terrestrial licence area; and
(ii) has the same, or substantially the same, program content as the metropolitan service;
the section 38C licensee will provide a HDTV multi-channelled commercial television broadcasting service that has the same, or substantially the same, program content as the metropolitan service.
(3) Subclauses (1) and (2) do not require a licensee to provide a service before the start date for the licence area. Note: For start date, see clause 7H.
(4) Subclause (2) does not apply to a HDTV multi-channelled commercial television broadcasting service that a commercial television broadcasting licensee for a metropolitan licence area commences to provide after the end of the simulcast period for the metropolitan licence area.
Standard conditions Schedule 2 Commercial television broadcasting licences Part 3
Licences allocated under section 38C Division 2
Clause 7C
Broadcasting Services Act 1992 579
(5) If: (a) the licensee of a commercial television broadcasting licence
for a metropolitan licence area provides a HDTV multi-channelled commercial television broadcasting service (the metropolitan service) in the metropolitan licence area; and
(b) the licensee of a terrestrial licence for a related terrestrial licence area provides a HDTV multi-channelled commercial television broadcasting service (the related terrestrial service) in the related terrestrial licence area; and
(c) the related terrestrial service has the same, or substantially the same, program content as the metropolitan service; and
(d) in compliance with subclause (1), the licensee of a licence allocated under section 38C provides a HDTV multi-channelled commercial television broadcasting service that has the same, or substantially the same, program content as the related terrestrial service; and
(e) the related terrestrial service ceases to be provided by the terrestrial licensee in the related terrestrial licence area;
subclause (2) does not apply to the section 38C licensee in relation to the metropolitan service while the cessation continues.
SDTV multi-channelled commercial television broadcasting services
(6) A licence allocated under section 38C is subject to the condition that, if:
(a) the licensee (the metropolitan licensee) of a commercial television broadcasting licence for a metropolitan licence area provides a SDTV multi-channelled commercial television broadcasting service (the metropolitan service) in the metropolitan licence area; and
(b) the metropolitan service is not the core/primary commercial television broadcasting service provided by the metropolitan licensee; and
(c) the licensee of a terrestrial licence for a related terrestrial licence area provides a SDTV multi-channelled commercial television broadcasting service (the related terrestrial service) in the related terrestrial licence area; and
(d) the related terrestrial service has the same, or substantially the same, program content as the metropolitan service;
Schedule 2 Standard conditions Part 3 Commercial television broadcasting licences Division 2 Licences allocated under section 38C
Clause 7C
580 Broadcasting Services Act 1992
the section 38C licensee will provide a SDTV multi-channelled commercial television broadcasting service that has the same, or substantially the same, program content as the related terrestrial service.
(7) A licence allocated under section 38C is subject to the condition that, if:
(a) the licensee (the metropolitan licensee) of a commercial television broadcasting licence for a metropolitan licence area provides a SDTV multi-channelled commercial television broadcasting service (the metropolitan service) in the metropolitan licence area; and
(b) the metropolitan service is not the core/primary commercial television broadcasting service provided by the metropolitan licensee; and
(c) there is no SDTV multi-channelled commercial television broadcasting service that:
(i) is provided by the licensee of a terrestrial licence for a related terrestrial licence area; and
(ii) has the same, or substantially the same, program content as the metropolitan service;
the section 38C licensee will provide a SDTV multi-channelled commercial television broadcasting service that has the same, or substantially the same, program content as the metropolitan service.
(8) Subclauses (6) and (7) do not require a licensee to provide a service before the start date for the licence area. Note: For start date, see clause 7H.
(9) Subclause (7) does not apply to a SDTV multi-channelled commercial television broadcasting service that a commercial television broadcasting licensee for a metropolitan licence area commences to provide after the end of the simulcast period for the metropolitan licence area.
(10) If: (a) the licensee (the metropolitan licensee) of a commercial
television broadcasting licence for a metropolitan licence area provides a SDTV multi-channelled commercial television broadcasting service (the metropolitan service) in the metropolitan licence area; and
Standard conditions Schedule 2 Commercial television broadcasting licences Part 3
Licences allocated under section 38C Division 2
Clause 7D
Broadcasting Services Act 1992 581
(b) the metropolitan service is not the core/primary commercial television broadcasting service provided by the metropolitan licensee; and
(c) the licensee of a terrestrial licence for a related terrestrial licence area provides a SDTV multi-channelled commercial television broadcasting service (the related terrestrial service) in the related terrestrial licence area; and
(d) the related terrestrial service has the same, or substantially the same, program content as the metropolitan service; and
(e) in compliance with subclause (6), the licensee of a licence allocated under section 38C provides a SDTV multi-channelled commercial television broadcasting service that has the same, or substantially the same, program content as the related terrestrial service; and
(f) the related terrestrial service ceases to be provided by the terrestrial licensee in the related terrestrial licence area;
subclause (7) does not apply to the section 38C licensee in relation to the metropolitan service while the cessation continues. Note: For metropolitan licence area, related terrestrial licence area and
terrestrial licence, see clause 7L.
7D Condition about the provision of local news services
(1) A licence allocated under section 38C is subject to the condition that, if a program is provided, or required to be provided, to the licensee by another licensee under subsection 43AA(1), the section 38C licensee will broadcast the program on a service authorised by paragraph 41CA(1)(c), (f) or (g) as soon as practicable after the other licensee begins to broadcast the program.
(2) Subclause (1) does not apply if the section 38C licensee has previously broadcast the program on such a service.
(3) Subclause (1) does not apply to a program the broadcasting of which in any jurisdiction in the licence area of the section 38C licence could result in the section 38C licensee:
(a) committing an offence; or (b) becoming liable to a civil penalty; or (c) breaching an order or direction of a court; or (d) being in contempt of court.
Schedule 2 Standard conditions Part 3 Commercial television broadcasting licences Division 2 Licences allocated under section 38C
Clause 7E
582 Broadcasting Services Act 1992
(4) Subclause (1) does not require the section 38C licensee to broadcast a program before the start date for the licence area of the section 38C licence. Note: For start date, see clause 7H.
7E Exemption—provision of new commercial television broadcasting services not technically feasible
If: (a) a licence is allocated under section 38C; and (b) after the start date for the licence area of the section 38C
licence, a commercial television broadcasting licensee (the terrestrial licensee) for a terrestrial licence area commences to provide, or proposes to commence to provide:
(i) a HDTV multi-channelled commercial television broadcasting service; or
(ii) a SDTV multi-channelled commercial television broadcasting service that is not the core/primary commercial television broadcasting service provided by the terrestrial licensee; and
(c) apart from this clause, the licensee of the section 38C licence is, or will be, required to provide:
(i) if subparagraph (b)(i) applies—a HDTV multi-channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the terrestrial licensee; or
(ii) if subparagraph (b)(ii) applies—a SDTV multi-channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the terrestrial licensee; and
(d) the ACMA considers that it is not technically feasible for the licensee of the section 38C licence to provide the required service;
the ACMA may, by legislative instrument, determine that clause 7C does not oblige the section 38C licensee to provide the required service. Note 1: For start date, see clause 7G.
Note 2: For terrestrial licence area, see clause 7L.
Standard conditions Schedule 2 Commercial television broadcasting licences Part 3
Licences allocated under section 38C Division 2
Clause 7F
Broadcasting Services Act 1992 583
7F Exemption—commercial television broadcasting services with the same program content
(1) If: (a) a commercial television broadcasting licensee (the terrestrial
licensee) for a terrestrial licence area provides, or proposes to commence to provide:
(i) a HDTV multi-channelled commercial television broadcasting service; or
(ii) a SDTV multi-channelled commercial television broadcasting service that is not the core/primary commercial television broadcasting service provided by the terrestrial licensee; and
(b) the program content of the service provided, or to be provided, by the terrestrial licensee is, or will be:
(i) the same; or (ii) substantially the same;
as the program content of another commercial television broadcasting service provided, or to be provided, by the terrestrial licensee; and
(c) apart from this subclause, the licensee of a section 38C licence is, or will be, required to provide:
(i) if subparagraph (a)(i) applies—a HDTV multi-channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the terrestrial licensee; or
(ii) if subparagraph (a)(ii) applies—a SDTV multi-channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the terrestrial licensee;
the Minister may, by legislative instrument, determine that clause 7C does not oblige the section 38C licensee to provide the required service during a period specified in the determination.
(2) The specified period must not be longer than 2 years.
(3) The Minister may, by legislative instrument, extend or further extend the specified period.
Schedule 2 Standard conditions Part 3 Commercial television broadcasting licences Division 2 Licences allocated under section 38C
Clause 7G
584 Broadcasting Services Act 1992
(4) Before making: (a) a determination under subclause (1); or (b) an instrument under subclause (3);
the Minister must consult: (c) the section 38C licensee concerned; and (d) the ACMA.
Note: For terrestrial licence area, see clause 7L.
7G Delay in commencement of new commercial television broadcasting services
For the purposes of this Division, if: (a) a licence is allocated under section 38C; and (b) after the start date for the licence area of the section 38C
licence, a commercial television broadcasting licensee (the terrestrial licensee) for a terrestrial licence area commences to provide:
(i) a HDTV multi-channelled commercial television broadcasting service; or
(ii) a SDTV multi-channelled commercial television broadcasting service that is not the core/primary commercial television broadcasting service provided by the terrestrial licensee; and
(c) the licensee of the section 38C licence is required to provide: (i) if subparagraph (b)(i) applies—a HDTV
multi-channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the terrestrial licensee; or
(ii) if subparagraph (b)(ii) applies—a SDTV multi-channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the terrestrial licensee; and
(d) there is a delay in the provision of the required service; disregard the delay so long as the delay is as short as is practicable. Note 1: For start date, see clause 7H.
Note 2: For terrestrial licence area, see clause 7L.
Standard conditions Schedule 2 Commercial television broadcasting licences Part 3
Licences allocated under section 38C Division 2
Clause 7H
Broadcasting Services Act 1992 585
7H Start dates for licence areas
Start date
(1) The ACMA may, by legislative instrument, declare that, for the purposes of this Division, a specified day is the start date for the South Eastern Australia TV3 licence area.
(2) The start date for the South Eastern Australia TV3 licence area must not be later than 90 days after the first or only occasion on which a licence for the licence area is allocated under section 38C.
(3) The ACMA may, by legislative instrument, declare that, for the purposes of this Division, a specified day is the start date for the Northern Australia TV3 licence area.
(4) The ACMA may, by legislative instrument, declare that, for the purposes of this Division, a specified day is the start date for the Western Australia TV3 licence area.
(5) The start date for: (a) the Northern Australia TV3 licence area; or (b) the Western Australia TV3 licence area;
must not be later than 3 months before the end of the earliest applicable terrestrial digital television switch-over date for the licence area.
Applicable terrestrial digital television switch-over date—Northern Australia TV3 licence area
(6) For the purposes of this clause, if: (a) the licence area of a terrestrial licence is included in the
Northern Australia TV3 licence area; and (b) there is a simulcast period for the terrestrial licence area; and (c) there is no local market area included in the terrestrial licence
area; the last day of the simulcast period for the terrestrial licence area is an applicable terrestrial digital television switch-over date for the Northern Australia TV3 licence area.
(7) For the purposes of this clause, if: (a) the licence area of a terrestrial licence is included in the
Northern Australia TV3 licence area; and
Schedule 2 Standard conditions Part 3 Commercial television broadcasting licences Division 2 Licences allocated under section 38C
Clause 7J
586 Broadcasting Services Act 1992
(b) there is a simulcast period for the terrestrial licence area; and (c) a local market area is included in the terrestrial licence area;
the day on which the local market area becomes a digital-only local market area is an applicable terrestrial digital television switch-over date for the Northern Australia TV3 licence area.
Applicable terrestrial digital television switch-over date—Western Australia TV3 licence area
(8) For the purposes of this clause, if: (a) the licence area of a terrestrial licence is included in the
Western Australia TV3 licence area; and (b) there is a simulcast period for the terrestrial licence area; and (c) there is no local market area included in the terrestrial licence
area; the last day of the simulcast period for the terrestrial licence area is an applicable terrestrial digital television switch-over date for the Western Australia TV3 licence area.
(9) For the purposes of this clause, if: (a) the licence area of a terrestrial licence is included in the
Western Australia TV3 licence area; and (b) there is a simulcast period for the terrestrial licence area; and (c) a local market area is included in the terrestrial licence area;
the day on which the local market area becomes a digital-only local market area is an applicable terrestrial digital television switch-over date for the Western Australia TV3 licence area.
7J Program content
(1) In determining, for the purposes of this Division, whether the program content of a commercial television broadcasting service provided by a licensee in a licence area is the same, or substantially the same, as the program content of another commercial television broadcasting service:
(a) ignore the following: (i) advertising or sponsorship material (whether or not of a
commercial kind); (ii) a promotion for a television program or a television
broadcasting service;
Standard conditions Schedule 2 Commercial television broadcasting licences Part 3
Licences allocated under section 38C Division 2
Clause 7K
Broadcasting Services Act 1992 587
(iii) community information material or community promotional material;
(iv) a weather bulletin; (v) any other similar material; and
(b) ignore a news program; and (c) ignore any program the broadcasting of which in any
jurisdiction in the licence area could result in the licensee: (i) committing an offence; or
(ii) becoming liable to a civil penalty; or (iii) breaching an order or direction of a court; or (iv) being in contempt of court; and
(d) ignore a program broadcast in circumstances specified in the regulations.
(2) In determining, for the purposes of clause 7B of this Schedule, whether the program content of a commercial television broadcasting service is the same, or substantially the same, as the program content of another commercial television broadcasting service, assume that a program that provides coverage of an anti-siphoning event is the same as a program that provides coverage of another anti-siphoning event.
7K SDTV multi-channelled commercial television broadcasting service
For the purposes of this Division, assume that paragraph 5A(1)(d) of Schedule 4 had not been enacted.
7L Definitions
In this Division:
digital-only local market area has the same meaning as in Schedule 4.
HDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
local market area has the same meaning as in Schedule 4.
metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:
Schedule 2 Standard conditions Part 3 Commercial television broadcasting licences Division 2 Licences allocated under section 38C
Clause 7L
588 Broadcasting Services Act 1992
(a) New South Wales; or (b) Victoria; or (c) Queensland; or (d) Western Australia; or (e) South Australia;
but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.
related terrestrial licence area: (a) in relation to a licence allocated under section 38C for the
South Eastern Australia TV3 licence area—means a terrestrial licence area mentioned in column 3 of item 1 of the table in subsection 38C(1); or
(b) in relation to a licence allocated under section 38C for the Northern Australia TV3 licence area—means a terrestrial licence area mentioned in column 3 of item 2 of the table in subsection 38C(1); or
(c) in relation to a licence allocated under section 38C for the Western Australia TV3 licence area—means a terrestrial licence area mentioned in column 3 of item 3 of the table in subsection 38C(1).
SDTV multi-channelled commercial television broadcasting service has the same meaning as in Schedule 4.
simulcast period has the same meaning as in Schedule 4.
terrestrial licence means a commercial television broadcasting licence other than a commercial television broadcasting licence allocated under section 38C or subsection 40(1).
terrestrial licence area means the licence area of a terrestrial licence.
Standard conditions Schedule 2 Commercial radio broadcasting licences Part 4
Clause 8
Broadcasting Services Act 1992 589
Part 4—Commercial radio broadcasting licences
8 Standard conditions of commercial radio broadcasting licences
(1) Each commercial radio broadcasting licence is subject to the following conditions:
(a) the licensee will not, in contravention of the Tobacco Advertising Prohibition Act 1992, broadcast a tobacco advertisement within the meaning of that Act;
(b) the licensee will comply with program standards applicable to the licence under Part 9 of this Act;
(ba) if the licensee provides a digital commercial radio broadcasting service under the licence—the licensee will comply with any standards under section 130AA (which deals with technical standards for digital transmission);
(bb) the licensee will comply with subsection 130V(1) (which deals with industry standards);
(c) the articles of association of the licensee will at all times contain:
(i) provisions under which a person is not eligible to continue to be the holder of shares in the licensee if, because of holding those shares and of any other relevant circumstances, that or some other person would contravene Part 5 of this Act; and
(ii) provisions under which the licensee may secure the disposal of shares held by a person to the extent necessary to prevent a contravention of Part 5 of this Act continuing or of shares held by a person who refuses or fails to provide a statutory declaration under the provisions referred to in subparagraph (iii) or (iv); and
(iii) provisions under which a person who becomes the holder of shares in the licensee is required to provide to the company a statutory declaration stating whether the shares are held by the person beneficially and, if not, who has beneficial interests in the shares and stating whether the person, or any person who has a beneficial interest in the shares, is in a position to exercise control
Schedule 2 Standard conditions Part 4 Commercial radio broadcasting licences
Clause 8
590 Broadcasting Services Act 1992
of another licence, and giving particulars of any such position; and
(iv) provisions under which a person holding shares in the licensee may be required by the licensee, from time to time, to provide to the licensee statutory declarations concerning matters relevant to his or her eligibility to continue to be the holder of those shares having regard to the provisions of Part 5 of this Act;
(d) the licensee will, if the Minister, by notice in writing given to the licensee, so requires broadcast, without charge, such items of national interest as are specified in the notice;
(e) the licensee will, if the Minister notifies the licensee in writing that an emergency has arisen which makes it important in the public interest that persons authorised by the Minister have control over matter broadcast using the licensee’s broadcasting facilities, allow those persons access to and control over those facilities;
(f) if: (i) the licence is a broadcasting services bands licence; and
(ii) the licence authorises the licensee to provide an analog commercial radio broadcasting service;
the licensee will keep in force a licence under the Radiocommunications Act 1992 that authorises the operation by the licensee of the radiocommunications devices used to provide that service;
(g) the licensee will not use the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory;
(h) the licensee will commence to provide at least one broadcasting service within one year of being allocated the licence or within such longer period as is notified in writing by the ACMA;
(ha) the licensee will comply with the requirements set out in section 205B;
(i) the licensee will comply with the requirements of clauses 3, 3A, 4, 5 and 6;
(j) the licensee will comply with a requirement that is applicable to the licensee under section 61BD or 61BE (which deal with the disclosure of cross-media relationships);
Standard conditions Schedule 2 Commercial radio broadcasting licences Part 4
Clause 8
Broadcasting Services Act 1992 591
(k) the licensee will not use the part of the radiofrequency spectrum covered by paragraph (b) of the definition of broadcasting services bands in subsection 6(1) to provide a commercial radio broadcasting service under the licence unless the service is a digital commercial radio broadcasting service.
(2) Each commercial radio broadcasting licence is also subject to the following conditions:
(a) the licensee will provide a service or services that, when considered together with other broadcasting services available in the licence area of the licence (including another service or services operated by the licensee), contributes to the provision of an adequate and comprehensive range of broadcasting services in that licence area;
(b) the licensee will remain a suitable licensee; (c) if a requirement under Division 5C of Part 5 (which sets out
local news and information requirements) applies to the licensee—the licensee will comply with that requirement.
(3) Each commercial radio broadcasting licence is also subject to the condition that the licensee will not provide commercial radio broadcasting services under the licence outside the licence area of the licence unless:
(a) the provision of those services outside that licence area occurs accidentally; or
(b) the provision of those services outside that licence area occurs as a necessary result of the provision of commercial radio broadcasting services within the licence area; or
(c) both: (i) the licensee satisfies the ACMA that the provision of
those services outside that licence area occurs in exceptional circumstances; and
(ii) the ACMA has given permission in writing; or (d) all of the following subparagraphs apply:
(i) the first-mentioned licensee satisfies the ACMA that there is a person (the eligible person) who is in a commercial radio broadcasting licence area (the second licence area) that is not the same as the first-mentioned licence area and who is not receiving adequate reception of a commercial radio broadcasting service or services
Schedule 2 Standard conditions Part 4 Commercial radio broadcasting licences
Clause 8
592 Broadcasting Services Act 1992
provided by a commercial radio broadcasting licensee for the second licence area;
(ii) the provision of the first-mentioned services outside the first-mentioned licence area occurs only to the extent necessary to provide adequate reception of the first-mentioned services to the eligible person;
(iii) the ACMA has given permission in writing.
Standard conditions Schedule 2 Community broadcasting licences Part 5
Clause 9
Broadcasting Services Act 1992 593
Part 5—Community broadcasting licences
9 Conditions applicable to services provided under community broadcasting licences
(1) Each community broadcasting licence is subject to the following conditions:
(a) the licensee will not, in contravention of the Tobacco Advertising Prohibition Act 1992, broadcast a tobacco advertisement within the meaning of that Act;
(b) the licensee will not broadcast advertisements, and the licensee will not broadcast sponsorship announcements otherwise than as mentioned in this clause;
(c) the licensee will comply with program standards applicable to the licence under Part 9 of this Act;
(ca) the licensee will comply with standards under section 130A (which deals with technical standards for digital transmission);
(caa) if the licensee provides a digital community radio broadcasting service under the licence—the licensee will comply with any standards under section 130AA (which deals with technical standards for digital transmission);
(cb) the licensee will comply with subsection 130V(1) (which deals with industry standards);
(d) the licensee will, if the Minister, by notice in writing given to the licensee, so requires broadcast, without charge, such items of national interest as are specified in the notice;
(e) the licensee will, if the Minister notifies the licensee in writing that an emergency has arisen which makes it important in the public interest that persons authorised by the Minister have control over matter broadcast using the licensee’s broadcasting facilities, allow those persons access to and control over those facilities;
(f) the licensee will not use the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory;
(g) the licensee will not broadcast a program that has been classified RC or X 18+ by the Classification Board;
Schedule 2 Standard conditions Part 5 Community broadcasting licences
Clause 9
594 Broadcasting Services Act 1992
(ga) the licensee will not broadcast films that are classified as “R 18+” unless the films have been modified as mentioned in paragraph 123(3A)(b);
(h) the licensee will commence the provision of at least one broadcasting service within one year of being allocated the licence or within such longer period as is notified in writing by the ACMA;
(i) the licensee will comply with the requirements of clauses 3, 3A, 4, 5 and 6;
(j) the licensee will not use the part of the radiofrequency spectrum covered by paragraph (b) of the definition of broadcasting services bands in subsection 6(1) to provide a community broadcasting service under the licence unless the service is a digital community radio broadcasting service;
(k) if a television licence area plan applies to the licence area— the licensee will comply with subsection 26AA(3).
(2) Each community broadcasting licence is also subject to the following conditions:
(a) the licensee will remain a suitable licensee; (b) the licensee will continue to represent the community interest
that it represented at the time when the licence was allocated or was last renewed;
(c) the licensee will encourage members of the community that it serves to participate in:
(i) the operations of the licensee in providing the service or services; and
(ii) the selection and provision of programs under the licence;
(d) the licensee will provide the service or services for community purposes;
(e) the licensee will not operate the service or services for profit or as part of a profit-making enterprise.
(2AA) Paragraph (2)(e) does not prevent a designated community radio broadcasting licensee from holding shares in a digital community radio broadcasting representative company (within the meaning of the Radiocommunications Act 1992).
(2A) Each community broadcasting licence is also subject to the condition that the licensee will not provide community
Standard conditions Schedule 2 Community broadcasting licences Part 5
Clause 9
Broadcasting Services Act 1992 595
broadcasting services under the licence outside the licence area of the licence unless:
(a) the provision of those services outside that licence area occurs accidentally; or
(b) the provision of those services outside that licence area occurs as a necessary result of the provision of community broadcasting services within the licence area; or
(c) both: (i) the licensee satisfies the ACMA that the provision of
those services outside that licence area occurs in exceptional circumstances; and
(ii) the ACMA has given permission in writing; or (d) all of the following subparagraphs apply:
(i) the first-mentioned licensee satisfies the ACMA that there is a person (the eligible person) who is in a community broadcasting licence area (the second licence area) that is not the same as the first-mentioned licence area and who is not receiving adequate reception of a community broadcasting service or services provided by a community broadcasting licensee for the second licence area;
(ii) the provision of the first-mentioned services outside the first-mentioned licence area occurs only to the extent necessary to provide adequate reception of the first-mentioned services to the eligible person;
(iii) the ACMA has given permission in writing.
(2B) Each community broadcasting licence that has been transferred is also subject to the condition that the transferee must, within 7 days after the transfer, notify the ACMA of the transfer. A notification must be in accordance with a form approved in writing by the ACMA.
(3) A community broadcasting licensee may broadcast sponsorship announcements on a particular community broadcasting service. However, they must not run in total for more than:
(a) if the licensee is a community television broadcasting licensee—7 minutes in any hour of broadcasting on that service; or
(b) in any other case—5 minutes in any hour of broadcasting on that service.
Schedule 2 Standard conditions Part 5 Community broadcasting licences
Clause 9
596 Broadcasting Services Act 1992
(4) A community television broadcasting licensee may broadcast sponsorship announcements only during periods before programs commence, after programs end or during natural program breaks.
(5) In working out the length of time devoted to the broadcasting of sponsorship announcements, account is not to be taken of the broadcasting by a community broadcasting licensee of any of the following:
(a) material that publicises programs to be broadcast by the licensee;
(b) material that promotes the licensee’s products, services or activities for the broadcast of which the licensee does not receive any consideration in cash or in kind;
(c) community information or community promotional material for the broadcast of which the licensee does not receive any consideration in cash or in kind;
(d) sponsorship announcements consisting of moving text that is overlaid on a test pattern.
(6) Paragraph (1)(b) applies to a community broadcasting service targeted, to a significant extent, to one or more remote Indigenous communities as if the words “for which the licensee receives any consideration in cash or in kind” were inserted after “advertisements”.
Standard conditions Schedule 2 Subscription television broadcasting licences Part 6
Clause 10
Broadcasting Services Act 1992 597
Part 6—Subscription television broadcasting licences
10 Conditions applicable to subscription television broadcasting licences
(1) Each subscription television broadcasting licence is subject to the following conditions:
(a) the licensee will not, in contravention of the Tobacco Advertising Prohibition Act 1992, broadcast a tobacco advertisement within the meaning of that Act;
(b) the licensee will comply with program standards applicable under Part 9 of this Act;
(ba) the licensee will comply with standards under section 130A (which deals with technical standards for digital transmission);
(bb) the licensee will comply with subsection 130V(1) (which deals with industry standards);
(d) the licensee will, if the Minister notifies the licensee in writing that an emergency has arisen which makes it important in the public interest that persons authorised by the Minister have control over matter broadcast using the licensee’s broadcasting facilities, allow those persons access to and control over those facilities;
(e) the licensee will not acquire the right to televise, on a subscription television broadcasting service, an event that is specified in a notice under subsection 115(1) unless:
(i) a national broadcaster has the right to televise the event on any of its broadcasting services; or
(ii) the television broadcasting services of commercial television broadcasting licensees (other than licensees who hold licences allocated under section 38C or subsection 40(1)) who have the right to televise the event cover a total of more than 50% of the Australian population;
(ea) the licensee will comply with subsection 121E(2) (section 121E is about requiring the ACMA’s permission to provide certain television services in regional areas);
Schedule 2 Standard conditions Part 6 Subscription television broadcasting licences
Clause 10
598 Broadcasting Services Act 1992
(eb) if a provision of Part 9D (which deals with captioning of television programs for the deaf and hearing impaired) applies to the licensee—the licensee will comply with that provision;
(f) the licensee will not broadcast a program that has been classified RC or X 18+ by the Classification Board;
(g) the licensee will ensure that access to programs classified as “R 18+” by the Classification Board is restricted by disabling devices acceptable to the ACMA but will not broadcast such an “R 18+” classified program until the ACMA has completed extensive, Australia-wide qualitative and quantitative research on community standards of taste and decency in relation to classifications for pay television and on what levels of violence and depiction of sex should be allowed, and the ACMA has recommended, and the Parliament has, by resolution of each House, approved, the broadcast of such programs;
(h) the licensee will not use its subscription broadcasting service in the commission of an offence against another Act or a law of a State or Territory;
(i) the licensee will comply with the requirements of clauses 3, 3A, 4 and 5;
(j) the licensee will not use the part of the radiofrequency spectrum covered by paragraph (b) of the definition of broadcasting services bands in subsection 6(1) to provide a subscription television broadcasting service under the licence.
(1A) For the purposes of subparagraph (1)(e)(ii), the percentage of the Australian population covered by the television broadcasting service or services of a commercial television broadcasting licensee (other than a licensee who holds a licence allocated under section 38C or subsection 40(1)) is the percentage most recently specified by the ACMA under paragraph 30(5)(a) for the licence area of the licensee's licence.
(1B) For the purposes of subparagraph (1)(e)(ii), if a program supplier for a commercial television broadcasting licensee (other than a licensee who holds a licence allocated under section 38C or subsection 40(1)) has a right to televise an event, the licensee is taken also to have the right. For this purpose, program supplier means a person who:
Standard conditions Schedule 2 Subscription television broadcasting licences Part 6
Clause 10
Broadcasting Services Act 1992 599
(a) has an agreement to supply the licensee with program material that can be televised on a commercial television broadcasting service provided by the licensee (whether or not the program material includes matter showing the event); and
(b) supplies the licensee with a substantial proportion of all the program material that is televised on a commercial television broadcasting service provided by the licensee (whether or not the material is supplied under the agreement mentioned in paragraph (a)).
(2) Each subscription television broadcasting licence is also subject to the following conditions:
(a) the licensee will remain a suitable licensee; (b) subscription fees will continue to be the predominant source
of revenue for the service.
Schedule 2 Standard conditions Part 7 Services provided under class licences
Clause 11
600 Broadcasting Services Act 1992
Part 7—Services provided under class licences
11 Conditions applicable to broadcasting services provided under class licences
(1) The following conditions apply to the provision by a person of a broadcasting service under a class licence:
(a) the licensee will not, in contravention of the Tobacco Advertising Prohibition Act 1992, broadcast a tobacco advertisement within the meaning of that Act;
(ab) in the case of a person who provides an open narrowcasting television service or a subscription television narrowcasting service—the person will comply with subsection 121E(2) (section 121E is about requiring the ACMA’s permission to provide certain television services in regional areas);
(b) the person will comply with program standards applicable to the licence under Part 9 of this Act;
(ba) in the case of a person who provides an open narrowcasting television service or a subscription television narrowcasting service—the licensee will comply with standards under section 130A (which deals with technical standards for digital transmission);
(baa) in the case of a person who provides: (i) a subscription radio broadcasting service; or
(ii) a subscription radio narrowcasting service; or (iii) an open narrowcasting radio service; transmitted using a digital modulation technique—the licensee will comply with standards under section 130AA (which deals with technical standards for digital transmission);
(bb) the licensee will comply with standards under subsection 130V(1) (which deals with industry standards);
(bc) if a provision of Part 9D (which deals with captioning of television programs for the deaf and hearing impaired) applies to the licensee—the licensee will comply with that provision;
Standard conditions Schedule 2 Services provided under class licences Part 7
Clause 11
Broadcasting Services Act 1992 601
(c) the person will not use the broadcasting service in the commission of an offence against another Act or a law of a State or Territory;
(d) the person will comply with the requirements of clauses 3, 3A, 4, 5 and 6;
(e) the person will not use the part of the radiofrequency spectrum covered by paragraph (b) of the definition of broadcasting services bands in subsection 6(1) to provide broadcasting services under the licence.
(2) The provision by a person of a subscription broadcasting service or a subscription narrowcasting service under a class licence is also subject to the condition that subscription fees will continue to be the predominant source of revenue for the service.
(3) The provision by a person of an open narrowcasting television service under a class licence is also subject to the following conditions:
(a) the licensee will not broadcast a program that has been classified RC or X 18+ by the Classification Board;
(b) the licensee will not broadcast films that are classified as “R 18+” unless the films have been modified as mentioned in paragraph 123(3C)(b).
(4) The provision by a person of a subscription television narrowcasting service under a class licence is also subject to the condition that the licensee will not broadcast a program that has been classified RC or X 18+ by the Classification Board.
Prepared by the Office of Parliamentary Counsel, Canberra
Broadcasting Services Act 1992
No. 110, 1992 as amended
Compilation start date: 1 October 2013
Includes amendments up to: Act No. 103, 2013
This compilation has been split into 2 volumes
Volume 1: sections 1–218
Schedules 1 and 2
Volume 2: Schedules 4–7
Endnotes
Each volume has its own contents
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
About this compilation
This compilation
This is a compilation of the Broadcasting Services Act 1992 as in force on
1 October 2013. It includes any commenced amendment affecting the
legislation to that date.
This compilation was prepared on 3 October 2013.
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of each amended provision.
Uncommenced amendments
The effect of uncommenced amendments is not reflected in the text of the
compiled law but the text of the amendments is included in the endnotes.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment is affected by an application,
saving or transitional provision that is not included in this compilation, details
are included in the endnotes.
Modifications
If a provision of the compiled law is affected by a modification that is in force,
details are included in the endnotes.
Provisions ceasing to have effect
If a provision of the compiled law has expired or otherwise ceased to have
effect in accordance with a provision of the law, details are included in the
endnotes.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Broadcasting Services Act 1992 i
Contents
Schedule 4—Digital television broadcasting 17
Part 1—Introduction 17 1 Simplified outline ............................................................................17
2 Definitions.......................................................................................17
3 Analog mode ...................................................................................23
4 Digital mode ....................................................................................23
4A HDTV digital mode.........................................................................23
4B SDTV digital mode..........................................................................23
4C Simulcast-equivalent period for a licence area ................................23
4D Simulcast-equivalent period for a coverage area .............................24
5 Remote licence area.........................................................................24
5A SDTV multi-channelled commercial television broadcasting
service..............................................................................................24
5B HDTV multi-channelled commercial television broadcasting
service..............................................................................................25
5C SDTV multi-channelled national television broadcasting
service..............................................................................................25
5D HDTV multi-channelled national television broadcasting
service..............................................................................................26
5E Designated HDTV multi-channelled national television
broadcasting service ........................................................................26
5F Local market areas and digital-only local market areas ...................27
5H Reports on transmission blackspots .................................................28
5J Overlapping coverage areas.............................................................28
Part 2—Commercial television 29 6 Commercial television conversion scheme......................................29
6A Determination of simulcast period—metropolitan and
regional licence areas ......................................................................43
6B Determination of simulcast period—remote licence areas ..............45
7 Scheme may confer administrative powers on the ACMA..............45
7A Scheme may confer power to make digital channel plans ...............45
7AA Allotment of channels after the television licence area plan
comes into force ..............................................................................46
7B Revocation of multi-channelling election........................................46
8 Transmitter licences.........................................................................47
9 Submission of implementation plans to the ACMA ........................50
9A Areas exempt from digital transmission requirements—
commercial television broadcasting licensees .................................50
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
ii Broadcasting Services Act 1992
10 Amendment of certain plans and guidelines ....................................53
11 Reviews and reports ........................................................................53
12 Ancillary or incidental provisions....................................................53
13 ACMA to have regard to datacasting allocation power ...................53
14 ACMA to have regard to special circumstances that apply in
remote licence areas ........................................................................53
15 Minister may give directions to the ACMA ....................................54
16 Variation of scheme.........................................................................54
17 Scheme to be a disallowable instrument ..........................................54
18 Processes to be public......................................................................54
Part 3—ABC/SBS television 55 19 National television conversion scheme............................................55
20 National broadcasters to give implementation plans to the
Minister ...........................................................................................64
21 Compliance with implementation plans...........................................67
21A Areas exempt from digital transmission requirements—
national broadcasters .......................................................................67
22 Scheme may confer administrative powers on the ACMA..............70
22A Scheme may confer power to make digital channel plans ...............70
22AA Allotment of channels after the television licence area plan
comes into force ..............................................................................70
23 Transmitter licences.........................................................................70
24 Amendment of certain plans and guidelines ....................................73
25 Reviews and reports ........................................................................73
26 Ancillary or incidental provisions....................................................73
27 ACMA to have regard to datacasting allocation power ...................73
28 ACMA to have regard to special circumstances that apply in
remote coverage areas .....................................................................74
29 Minister may give directions to the ACMA ....................................74
30 Variation of scheme.........................................................................74
31 Scheme to be a disallowable instrument ..........................................74
32 Scheme does not take effect until approved by the Minister ...........75
33 Processes to be public......................................................................75
34 Compliance with scheme.................................................................75
35 Simulcasting requirements ..............................................................75
35A Certain transmissions to be disregarded ..........................................75
35AA National broadcasters must provide HDTV multi-channelled
national television broadcasting service during simulcast
period etc. ........................................................................................76
36 Digital transmitter not to be used to provide a subscription
television broadcasting service etc. .................................................76
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Broadcasting Services Act 1992 iii
Part 4—Standards and HDTV quotas 78
Division 2—HDTV quotas and standards 78
37DAA This Division does not apply in relation to section 38C
licences ............................................................................................78
37DA This Division does not apply in relation to licences allocated
under subsection 40(1).....................................................................78
37E Non-remote areas—HDTV quotas for commercial television
broadcasting licensees .....................................................................78
37F Non-remote areas—HDTV quotas for national broadcasters ..........80
37G Remote areas—HDTV quotas for commercial television
broadcasting licensees .....................................................................81
37H Remote areas—HDTV quotas for national broadcasters .................82
37K Compliance by national broadcasters ..............................................82
37L High-definition television programs................................................83
37M Prime viewing hours........................................................................85
Division 5—Miscellaneous 86
41 Standards may incorporate other instruments ..................................86
Part 4A—Restrictions on televising anti-siphoning events 87
Division 1—Commercial television broadcasting services 87
41A SDTV multi-channelled commercial television broadcasting
service—restrictions on televising anti-siphoning events
during the simulcast period if there is a core service etc. ................87
41B SDTV multi-channelled commercial television broadcasting
service—restrictions on televising anti-siphoning events
during the simulcast period if there is a primary service etc............88
41C HDTV multi-channelled commercial television broadcasting
service—restrictions on televising anti-siphoning events
during the simulcast period if there is a core service etc. ................90
41D HDTV multi-channelled commercial television broadcasting
service—restrictions on televising anti-siphoning events
during the simulcast period if there is a primary service etc............91
41E SDTV multi-channelled commercial television broadcasting
service—restrictions on televising anti-siphoning events
after the end of the simulcast period etc. .........................................92
41F HDTV multi-channelled commercial television broadcasting
service—restrictions on televising anti-siphoning events
after the end of the simulcast period etc. .........................................94
41FA SDTV multi-channelled commercial television broadcasting
service provided under a section 38C licence—restrictions
on televising anti-siphoning events..................................................95
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
iv Broadcasting Services Act 1992
41FB HDTV multi-channelled commercial television broadcasting
service provided under a section 38C licence—restrictions
on televising anti-siphoning events..................................................96
41G Primary commercial television broadcasting service.......................98
Division 2—National television broadcasting services 100
41H SDTV multi-channelled national television broadcasting
service—restrictions on televising anti-siphoning events
during the simulcast period etc. .....................................................100
41J HDTV multi-channelled national television broadcasting
service—restrictions on televising anti-siphoning events
during the simulcast period etc. .....................................................101
41K SDTV multi-channelled national television broadcasting
service—restrictions on televising anti-siphoning events
after the end of the simulcast period etc. .......................................102
41L HDTV multi-channelled national television broadcasting
service—restrictions on televising anti-siphoning events
after the end of the simulcast period etc. .......................................104
41LA SDTV multi-channelled national television broadcasting
service provided with the use of a satellite—restrictions on
televising anti-siphoning events ....................................................105
41LB HDTV multi-channelled national television broadcasting
service provided with the use of a satellite—restrictions on
televising anti-siphoning events ....................................................106
41M Primary national television broadcasting service...........................107
41N Primary satellite national television broadcasting service .............108
Part 5—Transmitter access regime 109 42 Simplified outline ..........................................................................109
43 Definitions.....................................................................................109
43A Designated associated facilities .....................................................110
44 Extended meaning of access..........................................................110
45 Access to broadcasting transmission towers ..................................111
45A Access to designated associated facilities......................................112
46 Access to sites of broadcasting transmission towers......................114
47 Terms and conditions of access .....................................................116
48 Code relating to access ..................................................................118
49 Arbitration—acquisition of property .............................................118
50 Relationship between this Part and the National
Transmission Network Sale Act 1998 ............................................119
Part 6—Collection of datacasting charge 120 51 Collection of datacasting charge....................................................120
52 Cancellation of certain exemptions from datacasting charge.........121
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Broadcasting Services Act 1992 v
Part 7—Injunctions 122 54 Injunctions.....................................................................................122
55 Interim injunctions.........................................................................123
56 Discharge etc. of injunctions .........................................................123
57 Certain limits on granting injunctions not to apply........................123
58 Other powers of the court unaffected ............................................124
Part 8—Reviews 125
Part 10—Review of decisions 126 62 Review by the AAT.......................................................................126
63 Notification of decisions to include notification of reasons
and appeal rights............................................................................127
Part 11—Regional equalisation plan 128 64 Regional equalisation plan.............................................................128
Schedule 5—Online services 130
Part 1—Introduction 130 2 Simplified outline ..........................................................................130
3 Definitions.....................................................................................131
5 Internet content that consists of a film...........................................133
7 Extended meaning of use...............................................................133
Part 2—Internet service providers 134 8 Internet service providers ..............................................................134
9 Supply to the public.......................................................................134
Part 4—Complaints to, and investigations by, the ACMA 136
Division 1—Making of complaints to the ACMA 136
23 Complaints about breaches of online provider rules etc. ...............136
24 Form of complaint .........................................................................136
25 Residency etc. of complainant .......................................................136
Division 2—Investigations by the ACMA 137
26 Investigation of complaints by the ACMA....................................137
27 ACMA may investigate matters on its own initiative ....................137
28 Conduct of investigations ..............................................................137
29 Protection from civil proceedings..................................................138
Division 4—Action to be taken in relation to a complaint about
prohibited content hosted outside Australia 139
40 Action to be taken in relation to a complaint about prohibited
content hosted outside Australia ....................................................139
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
vi Broadcasting Services Act 1992
41 Deferral of action in order to avoid prejudicing a criminal
investigation ..................................................................................141
42 Withdrawal of notification of content—reclassification of
internet content ..............................................................................141
43 Withdrawal of notification of content—reclassification of
internet content that consists of a film or a computer game...........142
44 Revocation of standard access-prevention notice—
reclassification of internet content.................................................142
45 Revocation of standard access-prevention notice—
reclassification of internet content that consists of a film or a
computer game ..............................................................................143
46 Anti-avoidance—notified internet content ....................................144
47 Anti-avoidance—special access-prevention notice........................145
48 Compliance with access-prevention notices ..................................146
49 Notification of internet content......................................................146
50 Application of notifications under this Division............................146
51 ACMA may be taken to have issued access-prevention
notices............................................................................................146
Part 5—Industry codes and industry standards 148
Division 1—Simplified outline 148
52 Simplified outline ..........................................................................148
Division 2—Interpretation 149
53 Industry codes................................................................................149
54 Industry standards..........................................................................149
55 Internet activity..............................................................................149
56 Section of the internet industry......................................................149
57 Participants in a section of the internet industry ............................149
58 Designated body ............................................................................149
Division 3—General principles relating to industry codes and
industry standards 150
59 Statement of regulatory policy.......................................................150
60 Matters that must be dealt with by industry codes and
industry standards..........................................................................150
61 Industry codes and industry standards not to deal with
certain matters ...............................................................................154
Division 4—Industry codes 155
62 Registration of industry codes .......................................................155
63 ACMA may request codes.............................................................156
64 Publication of notice where no body or association
represents a section of the internet industry...................................157
65 Replacement of industry codes ......................................................158
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Broadcasting Services Act 1992 vii
66 Compliance with industry codes....................................................158
67 Formal warnings—breach of industry codes .................................158
Division 5—Industry standards 159
68 ACMA may determine an industry standard if a request for
an industry code is not complied with ...........................................159
69 ACMA may determine industry standard where no industry
body or association formed............................................................160
70 ACMA may determine industry standards—total failure of
industry codes................................................................................160
71 ACMA may determine industry standards—partial failure of
industry codes................................................................................162
72 Compliance with industry standards..............................................163
73 Formal warnings—breach of industry standards ...........................163
74 Variation of industry standards......................................................164
75 Revocation of industry standards...................................................164
76 Public consultation on industry standards......................................164
77 Consultation with designated body................................................165
Division 6—Register of industry codes and industry standards 166
78 ACMA to maintain Register of industry codes and industry
standards........................................................................................166
Part 6—Online provider rules 167 79 Online provider rules .....................................................................167
80 Online provider determinations .....................................................167
81 Exemptions from online provider determinations .........................168
82 Compliance with online provider rules..........................................168
83 Remedial directions—breach of online provider rules ..................168
84 Formal warnings—breach of online provider rules .......................169
85 Federal Court may order a person to cease supplying internet
carriage services ............................................................................169
Part 7—Offences 171 86 Continuing offences.......................................................................171
87 Conduct by directors, employees and agents .................................171
Part 8—Protection from civil and criminal proceedings 174 88 Protection from civil proceedings—internet service
providers........................................................................................174
Part 9—Operation of State and Territory laws etc. 175 90 Concurrent operation of State and Territory laws..........................175
91 Liability of internet content hosts and internet service
providers under State and Territory laws etc. ................................175
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
viii Broadcasting Services Act 1992
Part 10—Review of decisions 177 92 Review by the AAT.......................................................................177
93 Notification of decisions to include notification of reasons
and appeal rights............................................................................177
Part 11—Miscellaneous 178 94 Additional ACMA functions .........................................................178
95 Review before 1 January 2003 ......................................................178
96 Schedule not to affect performance of State or Territory
functions ........................................................................................179
Schedule 6—Datacasting services 180
Part 1—Introduction 180 1 Simplified outline ..........................................................................180
2 Definitions.....................................................................................181
2A Designated datacasting service ......................................................184
3 Educational programs ....................................................................184
4 Information-only programs............................................................185
5 Foreign-language news or current affairs programs ......................187
6 Datacasting content is taken not to be a television program or
a radio program etc. .......................................................................187
Part 2—Datacasting licences 188 7 Allocation of datacasting licence...................................................188
8 When datacasting licence must not be allocated............................188
9 Unsuitable applicant ......................................................................188
10 Transfer of datacasting licences.....................................................189
11 Surrender of datacasting licences ..................................................190
12 ACMA to maintain Register of datacasting licences that are
not restricted datacasting licences..................................................190
12A ACMA to maintain Register of restricted datacasting
licences ..........................................................................................190
Part 3—Conditions of datacasting licences 191
Division 1—Genre conditions 191
13 Category A television programs ....................................................191
14 Condition relating to category A television programs ...................192
15 Category B television programs ....................................................193
16 Condition relating to category B television programs ...................194
17 Genre conditions do not apply to Parliamentary proceedings
etc. .................................................................................................195
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Broadcasting Services Act 1992 ix
18 Genre conditions do not apply to matter that consists of no
more than text or still visual images etc.........................................196
18A Genre conditions do not apply to advertising or sponsorship
material..........................................................................................197
19 Genre conditions do not apply to interactive computer games ......197
20 Genre conditions do not apply to internet carriage services or
ordinary electronic mail.................................................................197
20AA Genre conditions do not apply to certain content copied from
the internet.....................................................................................197
Division 2—Audio content condition 199
21 Audio content condition ................................................................199
22 Audio content condition does not apply to Parliamentary
proceedings etc. .............................................................................200
23 Audio content condition does not apply to matter that
consists of no more than text or still visual images etc. .................201
23A Audio content condition does not apply to advertising or
sponsorship material ......................................................................201
Division 2A—Genre conditions: anti-avoidance 202
23B Anti-avoidance—declared internet carriage services.....................202
Division 3—Other conditions 203
24 General conditions.........................................................................203
24A Special conditions for restricted datacasting licences ....................205
25 Suitability condition ......................................................................205
26 Additional conditions imposed by the ACMA ..............................206
27 Restricted access system................................................................207
Division 4—Exemption orders for content copied from the
internet 208
27A Exemption orders in relation to content copied from the
internet...........................................................................................208
Part 4—Codes of practice 209 28 Development of codes of practice .................................................209
29 Review by the ACMA ...................................................................212
30 ACMA to maintain Register of codes of practice..........................213
31 ACMA may determine standards where codes of practice fail
or where no code of practice developed ........................................213
32 Consultation on standards..............................................................213
33 Notification of determination or variation or revocation of
standards........................................................................................214
34 Limitation of ACMA’s power in relation to standards ..................214
35 This Part does not apply to internet carriage services or
ordinary electronic mail.................................................................214
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
x Broadcasting Services Act 1992
35A This Part does not apply to the ABC or SBS .................................214
Part 5—Complaints to the ACMA about datacasting services 215 36 Complaints about offences or breach of licence conditions...........215
37 Complaints under codes of practice...............................................215
38 Investigation of complaints by the ACMA....................................216
Part 6—Control of datacasting transmitter licences 217 41 Datacasting transmitter licences not to be controlled by ABC
or SBS ...........................................................................................217
Part 7—Nominated datacaster declarations 218 42 Object of this Part..........................................................................218
43 Datacasting transmitter licence......................................................218
44 Applications for nominated datacaster declarations ......................218
45 Making a nominated datacaster declaration...................................219
46 Effect of nominated datacaster declaration....................................219
47 Revocation of nominated datacaster declaration............................220
48 Register of nominated datacaster declarations...............................221
Part 8—Remedies for breaches of licensing provisions 222
Division 1—Providing a designated datacasting service without a
licence 222
49 Prohibition on providing a designated datacasting service
without a licence............................................................................222
50 Remedial directions—unlicensed datacasting services..................222
51 Exemption for broadcasting licensees etc......................................223
51A Exemption for designated teletext services....................................224
Division 2—Breaches of licence conditions 225
52 Offence for breach of conditions ...................................................225
52A Civil penalty provision relating to breach of conditions of
datacasting licences .......................................................................225
53 Remedial directions—breach of conditions...................................226
54 Suspension and cancellation ..........................................................227
55 Injunctions.....................................................................................228
56 Federal Court’s powers relating to injunctions ..............................229
57 Stay of proceedings relating to additional licence conditions,
remedial directions and suspension/cancellation decisions ...........230
Part 9—Review of decisions 233 58 Review by the Administrative Appeals Tribunal...........................233
59 Notification of decisions to include notification of reasons
and appeal rights............................................................................234
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Broadcasting Services Act 1992 xi
Schedule 7—Content services 235
Part 1—Introduction 235 1 Simplified outline ..........................................................................235
2 Definitions.....................................................................................237
3 Australian connection ....................................................................246
4 Hosting service ..............................................................................247
5 Content service provider................................................................247
6 When content is provided by a content service..............................247
7 When content service is provided to the public etc........................248
8 Links to content .............................................................................248
9 Services supplied by way of a voice call or video call...................248
9A Ancillary subscription television content service ..........................248
10 Classification of live content etc....................................................249
11 Eligible electronic publication.......................................................250
12 Re-transmitted broadcasting services ............................................251
13 Re-transmitted datacasting services...............................................251
14 Restricted access system................................................................251
15 R 18+ content and MA 15+ content ..............................................252
16 Content that consists of a film .......................................................253
17 Extended meaning of use...............................................................253
18 Trained content assessor ................................................................253
19 Extra-territorial application ...........................................................254
Part 2—Classification of content 255
Division 1—Prohibited content and potential prohibited content 255
20 Prohibited content..........................................................................255
21 Potential prohibited content...........................................................256
Division 2—Classification of content 257
22 Applications for classification of content ......................................257
23 Classification of content ................................................................258
24 Classification of content that consists of a film, a computer
game or an eligible electronic publication .....................................258
25 Classification of content that does not consist of a film, a
computer game or an eligible electronic publication .....................259
26 Deemed classification of content classified under Schedule 5.......259
27 Fees ...............................................................................................260
Division 3—Reclassification 262
28 Reclassification of content.............................................................262
29 Notice of intention to reclassify content ........................................262
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
xii Broadcasting Services Act 1992
Division 4—Review of classification decisions 264
Subdivision A—Review of classification of content 264
30 Persons who may apply for review................................................264
31 Applications for review .................................................................265
32 Classification Review Board may refuse to deal with review
applications that are frivolous etc. .................................................266
33 Review...........................................................................................266
Subdivision B—Review of content that consists of a film or a
computer game 266
34 Review of classification of content that consists of a film or
a computer game............................................................................266
Subdivision C—Review of content that consists of an eligible
electronic publication 267
35 Review of classification of content that consists of an
eligible electronic publication........................................................267
Division 5—Miscellaneous 268
36 Decisions of the Classification Board etc. .....................................268
Part 3—Complaints to, and investigations by, the ACMA 269
Division 1—Making of complaints to the ACMA 269
37 Complaints about prohibited content or potential prohibited
content ...........................................................................................269
38 Complaints relating to breach of a designated
content/hosting service provider rule etc. ......................................271
39 Form of complaint .........................................................................271
40 Recordings of live content .............................................................271
41 Residency etc. of complainant .......................................................272
42 Escalation of complaints made under industry codes etc...............272
Division 2—Investigations by the ACMA 274
43 Investigation of complaints by the ACMA....................................274
44 ACMA may investigate matters on its own initiative ....................274
45 Conduct of investigations ..............................................................275
46 Protection from civil proceedings..................................................275
Division 3—Action to be taken in relation to hosting services 276
47 Action to be taken in relation to hosting services ..........................276
48 Revocation of interim take-down notices—voluntary
withdrawal of content ....................................................................280
49 Revocation of final take-down notices—reclassification of
content ...........................................................................................280
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Broadcasting Services Act 1992 xiii
50 Revocation of final take-down notices—reclassification of
content that consists of a film or a computer game........................281
51 Revocation of final take-down notices—reclassification of a
corresponding print publication.....................................................281
52 Anti-avoidance—special take-down notices..................................282
53 Compliance with rules relating to prohibited content etc. .............283
54 Identification of content.................................................................284
55 Application of notices under this Division ....................................284
Division 4—Action to be taken in relation to live content services 285
56 Action to be taken in relation to live content services ...................285
57 Undertaking—alternative to service-cessation notice....................288
58 Revocation of service-cessation notices—undertaking..................288
59 Revocation of final service-cessation notices—
reclassification of content ..............................................................289
59A Anti-avoidance—special service-cessation notices .......................289
60 Compliance with rules relating to prohibited content etc. .............291
61 Identification of content.................................................................292
Division 5—Action to be taken in relation to links services 293
62 Action to be taken in relation to links services ..............................293
63 Revocation of interim link-deletion notices—voluntary
deletion of link...............................................................................297
64 Revocation of final link-deletion notices—reclassification of
content ...........................................................................................297
65 Revocation of final link-deletion notices—reclassification of
content that consists of a film or a computer game........................298
66 Revocation of final link-deletion notices—reclassification of
a corresponding print publication ..................................................298
67 Anti-avoidance—special link-deletion notices ..............................299
68 Compliance with rules relating to prohibited content etc. .............300
Division 6—Law enforcement agencies 302
69 Referral of matters to law enforcement agencies ...........................302
70 Deferral of action in order to avoid prejudicing a criminal
investigation—hosting services .....................................................303
71 Deferral of action in order to avoid prejudicing a criminal
investigation—live content services ..............................................303
72 Deferral of action in order to avoid prejudicing a criminal
investigation—links services .........................................................304
Part 4—Industry codes and industry standards 305
Division 1—Simplified outline 305
73 Simplified outline ..........................................................................305
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
xiv Broadcasting Services Act 1992
Division 2—Interpretation 306
74 Industry codes................................................................................306
75 Industry standards..........................................................................306
76 Content activity .............................................................................306
77 Sections of the content industry.....................................................306
78 Participants in a section of the content industry ............................307
79 Designated body ............................................................................307
Division 3—General principles relating to industry codes and
industry standards 308
80 Statement of regulatory policy.......................................................308
81 Matters that must be dealt with by industry codes and
industry standards—commercial content providers.......................308
82 Examples of matters that may be dealt with by industry
codes and industry standards .........................................................310
83 Escalation of complaints................................................................312
84 Collection of personal information ................................................312
Division 4—Industry codes 313
85 Registration of industry codes .......................................................313
86 ACMA may request codes.............................................................314
87 Publication of notice where no body or association
represents a section of the content industry ...................................315
88 Replacement of industry codes ......................................................315
89 Compliance with industry codes....................................................316
90 Formal warnings—breach of industry codes .................................316
Division 5—Industry standards 317
91 ACMA may determine an industry standard if a request for
an industry code is not complied with ...........................................317
92 ACMA may determine industry standard where no industry
body or association formed............................................................318
93 ACMA may determine industry standards—total failure of
industry codes................................................................................318
94 ACMA may determine industry standards—partial failure of
industry codes................................................................................320
95 Compliance with industry standards..............................................321
96 Formal warnings—breach of industry standards ...........................321
97 Variation of industry standards......................................................322
98 Revocation of industry standards...................................................322
99 Public consultation on industry standards......................................322
100 Consultation with designated body................................................323
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Broadcasting Services Act 1992 xv
Division 6—Register of industry codes and industry standards 324
101 ACMA to maintain Register of industry codes and industry
standards........................................................................................324
Division 7—Miscellaneous 325
102 Industry codes may provide for matters by reference to other
instruments ....................................................................................325
103 Industry standards may provide for matters by reference to
other instruments ...........................................................................325
Part 5—Designated content/hosting service provider
determinations 326 104 Designated content/hosting service provider determinations.........326
105 Exemptions from designated content/hosting service
provider determinations.................................................................326
Part 6—Enforcement 328 106 Compliance with designated content/hosting service provider
rules—offence ...............................................................................328
107 Compliance with designated content/hosting service provider
rules—civil penalty provision........................................................328
108 Remedial directions—breach of designated content/hosting
service provider rules ....................................................................329
109 Formal warnings—breach of designated content/hosting
service provider rules ....................................................................330
110 Federal Court may order a person to cease providing
designated content/hosting services...............................................330
Part 7—Protection from civil and criminal proceedings 331 111 Protection from civil proceedings—service providers...................331
112 Protection from criminal proceedings—ACMA,
Classification Board and Classification Review Board .................331
Part 8—Review of decisions 333 113 Review by the Administrative Appeals Tribunal...........................333
Part 9—Miscellaneous 336 114 Additional ACMA functions .........................................................336
115 Recordings of content etc. .............................................................336
116 Samples of content to be submitted for classification....................337
117 Service of summons, process or notice on corporations
incorporated outside Australia .......................................................337
117A Meaning of broadcasting service ..................................................338
118 Review...........................................................................................338
119 This Schedule does not limit Schedule 5 .......................................338
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
xvi Broadcasting Services Act 1992
120 This Schedule does not limit the Telecommunications Act
1997...............................................................................................338
121 Implied freedom of political communication.................................339
122 Concurrent operation of State and Territory laws..........................339
123 Schedule not to affect performance of State or Territory
functions ........................................................................................339
Endnotes 340
Endnote 1—About the endnotes 340
Endnote 2—Abbreviation key 342
Endnote 3—Legislation history 343
Endnote 4—Amendment history 357
Endnote 5—Uncommenced amendments 411
Australian Charities and Not-for-profits Commission (Consequential
and Transitional) Act 2012 (No. 169, 2012)..................................411
Endnote 6—Modifications [none] 412
Endnote 7—Misdescribed amendments [none] 412
Endnote 8—Miscellaneous [none] 412
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Introduction Part 1
Clause 1
Broadcasting Services Act 1992 17
Schedule 4—Digital television broadcasting Note: See section 216A.
Part 1—Introduction
1 Simplified outline
The following is a simplified outline of this Schedule:
• The ACMA is to formulate schemes for the conversion, over
time, of the transmission of television broadcasting services
from analog mode to digital mode.
• There is to be a simulcast period throughout which
broadcasters are to transmit their television programs in both
analog mode and SDTV digital mode.
• At the end of the simulcast period, analog transmissions are to
cease.
• Broadcasters must meet standards relating to quotas for the
transmission of programs in HDTV digital mode.
• Broadcasters will be allowed to use spare transmission
capacity on digital transmission channels to provide
datacasting services.
• Owners and operators of broadcasting transmission towers
must give digital broadcasters and datacasters access to the
towers for the purposes of installing or maintaining digital
transmitters.
• There are to be reviews before specified dates of certain
elements of the digital television regulatory regime.
2 Definitions
In this Schedule, unless the contrary intention appears:
AAT means the Administrative Appeals Tribunal.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 1 Introduction
Clause 2
18 Broadcasting Services Act 1992
broadcasting transmission tower means:
(a) a tower; or
(b) a pole; or
(c) a mast; or
(d) a similar structure;
used to supply:
(e) a broadcasting service by means of radiocommunications
using the broadcasting services bands; or
(f) a datacasting service provided under, and in accordance with
the conditions of, a datacasting licence.
commercial television broadcasting service means a commercial
broadcasting service that provides television programs.
commercial television conversion scheme means a scheme under
clause 6.
coverage area means:
(a) a metropolitan coverage area; or
(b) a regional coverage area.
Note: For overlapping coverage areas, see clause 5J.
designated HDTV multi-channelled national television
broadcasting service has the meaning given by clause 5E.
designated teletext service means a teletext service provided by a
commercial television broadcasting licensee, where:
(a) the licensee provided the service throughout the 2-year
period ending immediately before the commencement of
Schedule 6; and
(b) the service remains substantially the same as the service
provided throughout that 2-year period.
digital-only local market area has the meaning given by clause 5F.
exempt licence means a commercial television broadcasting
licence allocated under section 38B for a remote licence area.
exempt remote area service has the meaning given by
subclause 6(7F).
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Introduction Part 1
Clause 2
Broadcasting Services Act 1992 19
HDTV commercial television format standard means:
(a) if the licence area concerned is not a remote licence area—a
standard under section 130A that relates to the format in
which television programs are to be transmitted in HDTV
digital mode by commercial television broadcasting licensees
in such a licence area, where the relevant service is not
transmitted using a transmitter operated under the authority
of a transmitter licence issued as mentioned under
subclause 8(8); or
(b) if the licence area concerned is a remote licence area—a
standard under section 130A that relates to the format in
which television programs are to be transmitted in HDTV
digital mode by commercial television broadcasting licensees
in such a licence area, where the relevant service is not
transmitted using a transmitter operated under the authority
of a transmitter licence issued as mentioned under
subclause 8(10A).
HDTV digital mode has the meaning given by clause 4A.
HDTV multi-channelled commercial television broadcasting
service has the meaning given by clause 5B.
HDTV multi-channelled national television broadcasting service
has the meaning given by clause 5D.
HDTV national television format standard means:
(a) if the coverage area concerned is not a remote coverage
area—a standard under section 130A that relates to the
format in which television programs are to be transmitted in
HDTV digital mode by national broadcasters in such a
coverage area, where the relevant service is not transmitted
using a transmitter operated under the authority of a
transmitter licence issued as mentioned under
subclause 23(8); or
(b) if the coverage area concerned is a remote coverage area—a
standard under section 130A that relates to the format in
which television programs are to be transmitted in HDTV
digital mode by national broadcasters in such a coverage
area, where the relevant service is not transmitted using a
transmitter operated under the authority of a transmitter
licence issued as mentioned under subclause 23(10A).
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 1 Introduction
Clause 2
20 Broadcasting Services Act 1992
licence area means a licence area for a commercial television
broadcasting licence.
local market area has the meaning given by clause 5F.
metropolitan coverage area means an area that corresponds to a
metropolitan licence area.
metropolitan licence area means a licence area in which is situated
the General Post Office of the capital city of:
(a) New South Wales; or
(b) Victoria; or
(c) Queensland; or
(d) Western Australia; or
(e) South Australia;
but does not include the licence area of a commercial television
broadcasting licence allocated under section 38c.
national broadcasting service does not include a broadcasting
service provided under the Parliamentary Proceedings
Broadcasting Act 1946.
national radio broadcasting service means a national broadcasting
service that provides radio programs.
national television broadcasting service means a national
broadcasting service that provides television programs.
national television conversion scheme means a scheme under
clause 19.
news or current affairs program means any of the following:
(a) a news bulletin;
(b) a sports news bulletin;
(c) a program (whether presenter-based or not) whose sole or
dominant purpose is to provide analysis, commentary or
discussion principally designed to inform the general
community about social, economic or political issues of
current relevance to the general community.
parent licence means a commercial television broadcasting licence
referred to in subsection 38B(1) as a parent licence.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Introduction Part 1
Clause 2
Broadcasting Services Act 1992 21
primary commercial television broadcasting service, in relation to
a commercial television broadcasting licence, has the meaning
given by clause 41G.
primary national television broadcasting service, in relation to a
national broadcaster, has the meaning given by clause 41M.
primary satellite national television broadcasting service, in
relation to a national broadcaster, has the meaning given by
clause 41N.
radiocommunication has the same meaning as in the
Radiocommunications Act 1992.
regional coverage area means an area that corresponds to a
regional licence area.
regional licence area means a licence area that is not a
metropolitan licence area, but does not include the licence area of a
commercial television broadcasting licence allocated under
section 38c.
remote coverage area means an area that corresponds to a remote
licence area.
remote licence area has the meaning given by clause 5.
satellite delivery area means an area that corresponds to the licence
area of a commercial television broadcasting licence allocated
under section 38c.
SDTV commercial television format standard means:
(a) if the licence area concerned is not a remote licence area—a
standard under section 130A that relates to the format in
which television programs are to be transmitted in SDTV
digital mode by commercial television broadcasting licensees
in such a licence area; or
(b) if the licence area concerned is a remote licence area—a
standard under section 130A that relates to the format in
which television programs are to be transmitted in SDTV
digital mode by commercial television broadcasting licensees
in such a licence area.
SDTV digital mode has the meaning given by clause 4B.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 1 Introduction
Clause 2
22 Broadcasting Services Act 1992
SDTV multi-channelled commercial television broadcasting
service has the meaning given by clause 5A.
SDTV multi-channelled national television broadcasting service
has the meaning given by clause 5c.
SDTV national television format standard means:
(a) if the coverage area concerned is not a remote coverage
area—a standard under section 130A that relates to the
format in which television programs are to be transmitted in
SDTV digital mode by national broadcasters in such a
coverage area; or
(b) if the coverage area concerned is a remote coverage area—a
standard under section 130A that relates to the format in
which television programs are to be transmitted in SDTV
digital mode by national broadcasters in such a coverage
area.
simulcast-equivalent period:
(a) in relation to a commercial television broadcasting service—
has the meaning given by clause 4C; or
(b) in relation to a national television broadcasting service—has
the meaning given by clause 4D.
simulcast period:
(a) in relation to a commercial television broadcasting service
where the licence area concerned is a metropolitan licence
area or a regional licence area, but not a remote licence
area—has the meaning given by paragraph 6(3)(c) of this
Schedule; and
(b) in relation to a commercial television broadcasting service
where the licence area concerned is a remote licence area—
has the meaning given by subclause 6(7) of this Schedule;
and
(c) in relation to a national television broadcasting service where
the coverage area concerned is not a remote coverage area—
has the meaning given by paragraph 19(3)(c) of this
Schedule; and
(d) in relation to a national television broadcasting service where
the coverage area concerned is a remote coverage area—has
the meaning given by subclause 19(7) of this Schedule.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Introduction Part 1
Clause 3
Broadcasting Services Act 1992 23
television broadcasting service means:
(a) a commercial television broadcasting service; or
(b) a national television broadcasting service.
transmitter licence has the same meaning as in the
Radiocommunications Act 1992.
3 Analog mode
For the purposes of this Schedule, a program or service is
broadcast or transmitted in analog mode if the program or service
is broadcast or transmitted using an analog modulation technique.
4 Digital mode
For the purposes of this Schedule, a program or service is
broadcast or transmitted in digital mode if the program or service
is broadcast or transmitted using a digital modulation technique.
4A HDTV digital mode
For the purposes of this Schedule, a television program or a
television broadcasting service is broadcast or transmitted in
HDTV digital mode if the program or service is broadcast or
transmitted in digital mode in a high definition format.
4B SDTV digital mode
For the purposes of this Schedule, a program or a television
broadcasting service is broadcast or transmitted in SDTV digital
mode if the program or service is broadcast or transmitted in digital
mode in a standard definition format.
4C Simulcast-equivalent period for a licence area
(1) If there is no simulcast period for a licence area of a commercial
television broadcasting licence, the ACMA may, by legislative
instrument, declare that a specified period is the
simulcast-equivalent period for the licence area.
(2) Subclause (1) does not apply to a commercial television
broadcasting licence allocated under section 38c.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 1 Introduction
Clause 4D
24 Broadcasting Services Act 1992
4D Simulcast-equivalent period for a coverage area
If there is no simulcast period for a coverage area in relation to a
national television broadcasting service, the ACMA may, by
legislative instrument, declare that a specified period is the
simulcast-equivalent period for the coverage area.
5 Remote licence area
(1) The ACMA may, by writing, determine that a specified licence
area is a remote licence area for the purposes of this Schedule.
(1A) Subclause (1) does not apply to the licence area of a commercial
television broadcasting licence allocated under section 38c.
(2) A determination under this clause has effect accordingly.
(3) A determination under this clause is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act 1901.
5A SDTV multi-channelled commercial television broadcasting
service
(1) For the purposes of this Schedule, a commercial television
broadcasting service is a SDTV multi-channelled commercial
television broadcasting service if:
(a) the service is provided by a commercial television
broadcasting licensee; and
(b) the service is transmitted in SDTV digital mode:
(i) using multi-channelling transmission capacity; or
(ii) with the use of a satellite; and
(c) the service is promoted as a service that is distinct from any
other commercial television broadcasting service provided by
the licensee; and
(d) the service is not the core commercial television broadcasting
service.
(2) Paragraph (1)(d) ceases to have effect at the end of the simulcast
period, or simulcast-equivalent period, for the licence area
concerned.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Introduction Part 1
Clause 5B
Broadcasting Services Act 1992 25
5B HDTV multi-channelled commercial television broadcasting
service
For the purposes of this Schedule, a commercial television
broadcasting service is a HDTV multi-channelled commercial
television broadcasting service if:
(a) the service is provided by a commercial television
broadcasting licensee; and
(b) the service is transmitted in HDTV digital mode:
(i) using multi-channelling transmission capacity; or
(ii) with the use of a satellite; and
(c) the service is promoted as a service that is distinct from any
other commercial television broadcasting service provided by
the licensee.
5C SDTV multi-channelled national television broadcasting service
(1) For the purposes of this Schedule, a national television
broadcasting service is a SDTV multi-channelled national
television broadcasting service if:
(a) the service is provided by:
(i) the Australian Broadcasting Corporation in accordance
with section 6 of the Australian Broadcasting
Corporation Act 1983; or
(ii) the Special Broadcasting Service Corporation in
accordance with section 6 of the Special Broadcasting
Service Act 1991; and
(b) the service is transmitted in SDTV digital mode:
(i) using multi-channelling transmission capacity; or
(ii) with the use of a satellite; and
(c) the service is promoted as a service that is distinct from any
other national television broadcasting service provided by the
Corporation concerned; and
(d) the Corporation concerned has given the Minister a written
notice electing that this subclause apply to the service.
(2) A notice under paragraph (1)(d) has no effect if:
(a) the notice relates to a national television broadcasting service
transmitted by the Corporation concerned in a coverage area;
and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 1 Introduction
Clause 5D
26 Broadcasting Services Act 1992
(b) as a result of the notice being given, clause 19 would not
apply to any national television broadcasting service
provided by the Corporation in the coverage area.
(3) Subclause (2) ceases to have effect at the end of the simulcast
period, or simulcast-equivalent period, for the coverage area
concerned.
(4) Paragraph (1)(d) does not apply to a national television
broadcasting service provided with the use of a satellite.
5D HDTV multi-channelled national television broadcasting service
For the purposes of this Schedule, a national television
broadcasting service is a HDTV multi-channelled national
television broadcasting service if:
(a) the service is provided by:
(i) the Australian Broadcasting Corporation in accordance
with section 6 of the Australian Broadcasting
Corporation Act 1983; or
(ii) the Special Broadcasting Service Corporation in
accordance with section 6 of the Special Broadcasting
Service Act 1991; and
(b) the service is transmitted in HDTV digital mode:
(i) using multi-channelling transmission capacity; or
(ii) with the use of a satellite; and
(c) the service is promoted as a service that is distinct from any
other national television broadcasting service provided by the
Corporation concerned.
5E Designated HDTV multi-channelled national television
broadcasting service
(1) For the purposes of this Schedule, a designated HDTV
multi-channelled national television broadcasting service
provided by a national broadcaster in a coverage area is:
(a) if the national broadcaster provides a single HDTV
multi-channelled national television broadcasting service in
the coverage area—that service; or
(b) subject to subclauses (2) and (3), if the national broadcaster
provides 2 or more HDTV multi-channelled national
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Introduction Part 1
Clause 5F
Broadcasting Services Act 1992 27
television broadcasting services in the coverage area—each
of those services.
(2) Paragraph (1)(b) does not apply to a HDTV multi-channelled
national television broadcasting service provided by a national
broadcaster in a coverage area if the national broadcaster gives the
Minister a written notice electing that paragraph (1)(b) not apply to
the service.
(3) A notice under subclause (2) has no effect if, as a result of the
notice being given, paragraph (1)(b) would not apply to any of the
HDTV multi-channelled national television broadcasting services
provided by the national broadcaster in the coverage area.
5F Local market areas and digital-only local market areas
(1) The Minister may, by legislative instrument:
(a) determine that a specified area is a local market area for the
purposes of this Schedule; and
(b) determine that that area becomes a digital-only local market
area for the purposes of this Schedule at a specified time.
(2) An area must not be specified under paragraph (1)(a) unless it is
wholly included in a licence area.
(3) A time must not be specified under paragraph (1)(b) unless it falls
within the simulcast period for the licence area concerned.
(4) A subclause (1) determination is irrevocable.
Variation
(5) The Minister may, by legislative instrument, vary a subclause (1)
determination.
(6) The Minister must not vary a subclause (1) determination after the
time specified in the determination.
(10) Subclause (5) does not limit the application of subsection 33(3) of
the Acts Interpretation Act 1901 to other instruments under this
Act.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 1 Introduction
Clause 5H
28 Broadcasting Services Act 1992
Consultation
(11) Before making or varying a subclause (1) determination, the
Minister must consult the ACMA.
5H Reports on transmission blackspots
On the first sitting day of each House of the Parliament after each
1 January, 1 April, 1 July and 1 October from 1 April 2009 until
1 September 2014, the Minister must cause a report to be laid
before each House of the Parliament containing the following
information:
(a) action taken to identify and rectify transmission
infrastructure that would otherwise prevent the transmission
of free to air television broadcasting services in SDTV digital
mode in any area achieving the same level of coverage and
potential reception quality as was achieved by the
transmission of those services in analog mode; and
(b) the local market areas and regions where transmission issues
have been identified and how many households will be
affected.
5J Overlapping coverage areas
If:
(a) apart from this clause, a coverage area (the first coverage
area) overlaps with another coverage area; and
(b) the last day of the simulcast period for the first coverage area
is earlier than the last day of the simulcast period for the
other coverage area;
this Schedule has effect as if the area of overlap were not part of
the first coverage area.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Commercial television Part 2
Clause 6
Broadcasting Services Act 1992 29
Part 2—Commercial television
6 Commercial television conversion scheme
(1) As soon as practicable after the commencement of this clause, the
ACMA must, by writing, formulate a scheme (the commercial
television conversion scheme) for the conversion, over time, of the
transmission of commercial television broadcasting services from
analog mode to digital mode.
(2) The commercial television conversion scheme is to be divided into
the following Parts:
(a) Part A, which is to deal with licence areas that are not remote
licence areas;
(b) Part B, which is to deal with remote licence areas.
Policy objectives
(3) Part A of the commercial television conversion scheme must be
directed towards ensuring the achievement of the following policy
objectives:
(a) the objective that each holder of a commercial television
broadcasting licence for a metropolitan licence area is
required to commence transmitting the commercial television
broadcasting service concerned in SDTV digital mode in that
area on 1 January 2001;
(b) the objective that each holder of a commercial television
broadcasting licence for a regional licence area is required to
commence transmitting the commercial television
broadcasting service concerned in SDTV digital mode in that
area by such date during the period:
(i) beginning on 1 January 2001; and
(ii) ending immediately before 1 January 2004;
as the ACMA determines under the scheme;
(c) the objective that there should be a transitional period for a
metropolitan licence area or a regional licence area, that is:
(i) to be known as the simulcast period; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 2 Commercial television
Clause 6
30 Broadcasting Services Act 1992
(ii) in the case of a metropolitan licence area—to run for 9
years or for such other period as is determined under
subclause 6A(1) in relation to that area; and
(iia) in the case of a regional licence area—to run until the
end of 31 December 2013 or for such other period as is
determined under subclause 6A(2) in relation to that
area; and
(iii) in the case of a metropolitan licence area—to begin on
1 January 2001; and
(iv) in the case of a regional licence area—to begin on the
date determined in relation to that area in accordance
with paragraph (b);
throughout which the holder of a commercial television
broadcasting licence for that area is required to transmit
simultaneously the commercial television broadcasting
service concerned in both analog mode and SDTV digital
mode in so much of that area as is not a digital-only local
market area;
(d) the objective that, throughout the simulcast period for a
licence area, the holder of a commercial television
broadcasting licence for that area should be authorised, under
one or more transmitter licences, to use one or more
additional channels to transmit the commercial television
broadcasting service concerned in digital mode in that area;
(e) the objective that each additional channel should occupy 7
MHz of bandwidth;
(f) the objective that, as soon as is practicable after the start of
the simulcast period for a licence area, and throughout the
remainder of that period, the transmission of a commercial
television broadcasting service in SDTV digital mode in so
much of that area as is not a digital-only local market area
should achieve the same level of coverage and potential
reception quality as is achieved by the transmission of that
service in analog mode in so much of that area as is not a
digital-only local market area;
(g) the objective that, during the simulcast period for a licence
area, there should, as far as is practicable, be co-location of:
(i) transmitters used by the holder of a commercial
television broadcasting licence for that area to transmit
the commercial television broadcasting service
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Commercial television Part 2
Clause 6
Broadcasting Services Act 1992 31
concerned in digital mode in so much of that area as is
not a digital-only local market area; and
(ii) transmitters used by the holder to transmit that service
in analog mode in so much of that area as is not a
digital-only local market area;
(ga) the objective that, during the simulcast period for a licence
area, no transmissions of commercial television broadcasting
services in analog mode are to be made using a transmitter
located in so much of that area as is a digital-only local
market area;
(h) the objective that, at the end of the simulcast period for a
licence area, all transmissions of commercial television
broadcasting services in analog mode in that area are to
cease;
(ha) the objective that, if the television licence area plan for a
licence area comes into force immediately after the end of the
simulcast period for that area, each holder of a commercial
television broadcasting licence for that area is to transmit the
commercial television broadcasting service concerned in
digital mode in that area after the end of the simulcast period
using such channel or channels as are allotted under the
television licence area plan for that area;
(hb) the objective that, if the television licence area plan for a
licence area does not come into force immediately after the
end of the simulcast period for that area, each holder of a
commercial television broadcasting licence for that area is to
transmit the commercial television broadcasting service
concerned in digital mode in that area during the period:
(i) beginning at the end of the simulcast period; and
(ii) ending immediately before the television licence area
plan comes into force;
using such channel or channels as the ACMA allots under the
scheme or a digital channel plan, having regard to:
(iii) the need to plan the most efficient use of the spectrum;
and
(iv) the other relevant policy objectives of the scheme;
(hc) the objective that, if the television licence area plan for a
licence area does not come into force immediately after the
end of the simulcast period for that area, each holder of a
commercial television broadcasting licence for that area is to
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 2 Commercial television
Clause 6
32 Broadcasting Services Act 1992
transmit the commercial television broadcasting service
concerned in digital mode in that area after the television
licence area plan comes into force using such channel or
channels as are allotted under the television licence area plan
for that area;
(j) the objective that, after the end of the simulcast period for a
licence area, the transmission of a commercial television
broadcasting service in SDTV digital mode in so much of
that area as was not a digital-only local market area should
achieve the same level of coverage and potential reception
quality as was achieved by the transmission of that service in
analog mode in so much of that area as was not a digital-only
local market area immediately before the end of that period;
(ja) the objective that, after a local market area becomes a
digital-only local market area, the transmission of a
commercial television broadcasting service in SDTV digital
mode in the digital-only local market area should achieve the
same level of coverage and potential reception quality as was
achieved by the transmission of that service in analog mode
in the local market area immediately before the local market
area became a digital-only local market area;
(k) the objective that holders of commercial television
broadcasting licences be permitted to use any spare
transmission capacity that is available on the digital
transmission channels for the purpose of the transmission of
either or both of the following:
(i) datacasting services provided under, and in accordance
with the conditions of, datacasting licences;
(ii) designated teletext services;
(l) the objective that the ACMA is to consult holders of
commercial television broadcasting licences about the
implementation of the scheme;
(m) the objective that, if the implementation of the scheme affects
particular broadcasting transmission towers, the ACMA is to
consult the owners and operators of those towers;
(n) the objective that, in allotting channels under the scheme or a
digital channel plan, the ACMA must have regard to:
(i) the need to plan the most efficient use of the spectrum;
and
(ii) the other relevant policy objectives of the scheme.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Commercial television Part 2
Clause 6
Broadcasting Services Act 1992 33
(4) Subclause (3) does not prevent the commercial television
conversion scheme from allowing the holder of a commercial
television broadcasting licence for a regional licence area to
transmit the commercial television broadcasting service concerned
in digital mode in that area during the whole or a part of the period:
(a) beginning on 1 January 2001; and
(b) ending immediately before the start of the simulcast period
for that area;
so long as that transmission complies with such requirements as are
ascertained in accordance with the scheme.
(5) Subclause (3) does not prevent Part A of the commercial television
conversion scheme from allowing the holder of a commercial
television broadcasting licence for a licence area to transmit, on a
test basis, the commercial television broadcasting service
concerned in digital mode in that area before the start of the
simulcast period for that area, so long as that transmission:
(a) complies with such requirements as are ascertained in
accordance with that Part of the scheme; and
(b) occurs during a period ascertained in accordance with that
Part of the scheme.
(5A) If:
(a) the holder of a commercial television broadcasting licence
holds another commercial television broadcasting licence;
and
(b) the other licence was allocated under section 38A or 38B;
and
(c) the licences relate to the same licence area (within the
meaning of whichever of those sections is applicable); and
(d) either:
(i) if the other licence was allocated before the
commencement of section 38C—at or about the time
when the other licence was allocated, the holder gave
the ACMA a written notice electing that this subclause
apply to both of the commercial television broadcasting
services concerned; or
(ii) if the other licence was allocated after the
commencement of section 38C—before the end of the
simulcast period for the licence area of the other licence,
the holder gave the ACMA a written notice electing that
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 2 Commercial television
Clause 6
34 Broadcasting Services Act 1992
this subclause apply to the commercial television
broadcasting services provided under the licences;
then:
(e) paragraphs (3)(d), (e), (ha), (hb) and (hc) do not apply to the
commercial television broadcasting services provided under
the licences; and
(f) Part A of the commercial television conversion scheme must
be directed towards ensuring the achievement of the
objectives set out in subclause (5B).
(5AA) If:
(a) the holder of a commercial television broadcasting licence
holds another commercial television broadcasting licence;
and
(b) the other licence was allocated under section 38A before
1 January 2001; and
(c) the licences relate to the same licence area (within the
meaning of that section); and
(d) within 90 days after the commencement of this subclause, the
holder gives the ACMA a written notice electing that this
subclause apply to both of the commercial television
broadcasting services concerned;
then:
(e) paragraphs (3)(d), (e), (ha), (hb) and (hc) do not apply to the
commercial television broadcasting services provided under
the licences; and
(f) Part A of the commercial television conversion scheme must
be directed towards ensuring the achievement of the
objectives set out in subclause (5B).
(5B) The objectives mentioned in paragraphs (5A)(f) and (5AA)(f) are
as follows:
(a) the objective that, throughout the simulcast period for the
licence area, the holder should be authorised, under one or
more transmitter licences, to use one or more particular
channels to transmit the commercial television broadcasting
services provided under the commercial television
broadcasting licences referred to in whichever of
paragraph (5A)(a) or (5AA)(a) is applicable in digital mode
in that area using multi-channelling transmission capacity on
each channel;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Commercial television Part 2
Clause 6
Broadcasting Services Act 1992 35
(b) the objective that each channel should occupy 7 MHz of
bandwidth;
(c) the objective that, if the television licence area plan for that
area comes into force immediately after the end of the
simulcast period for the licence area, the holder is to transmit
the commercial television broadcasting services provided
under the commercial television broadcasting licences
referred to in whichever of paragraph (5A)(a) or (5AA)(a) is
applicable in digital mode in that area after the end of the
simulcast period using multi-channelling transmission
capacity of a channel or channels allotted under the television
licence area plan for the licence area;
(d) the objective that, if the television licence area plan for the
licence area does not come into force immediately after the
end of the simulcast period for the licence area, the holder is
to transmit the commercial television broadcasting services
provided under the commercial television broadcasting
licences referred to in whichever of paragraph (5A)(a) or
(5AA)(a) is applicable in digital mode in that area during the
period:
(i) beginning at the end of the simulcast period; and
(ii) ending immediately before the television licence area
plan comes into force;
using multi-channelling transmission capacity of a channel or
channels allotted by the ACMA under the scheme or a digital
channel plan, having regard to:
(iii) the need to plan the most efficient use of the spectrum;
and
(iv) the other relevant policy objectives of the scheme;
(e) the objective that, if the television licence area plan for the
licence area does not come into force immediately after the
end of the simulcast period for the licence area, the holder is
to transmit the commercial television broadcasting services
provided under the commercial television broadcasting
licences referred to in whichever of paragraph (5A)(a) or
(5AA)(a) is applicable in digital mode in that area after the
television licence area plan comes into force using
multi-channelling transmission capacity of a channel or
channels allotted under the television licence area plan for
that area.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 2 Commercial television
Clause 6
36 Broadcasting Services Act 1992
(5BA) An election made under subclause (5A) or (5AA) remains in force
until:
(a) it is revoked, by written notice given to the ACMA, by:
(i) if neither of the licences referred to in whichever of
paragraph (5A)(a) or (5AA)(a) is applicable has been
transferred since the making of the election—the holder
of the licence allocated under section 38A or 38B; or
(ii) if the licence allocated under section 38A or 38B has
been transferred since the making of the election—the
holder of that licence; or
(iii) if a parent licence referred to in whichever of
section 38A or 38B is applicable has been transferred
since the making of the election—the holder of that
parent licence; and
(b) the ACMA approves the revocation under clause 7B.
(5C) Paragraphs (3)(c), (d), (e), (f), (h) and (j) do not apply to a
commercial television broadcasting service provided under a
licence allocated under section 38B.
Note: Under section 38B, it is a condition of the licence that the service may
only be transmitted in digital mode.
(5CA) For the purposes of paragraphs (3)(f), (j) and (ja), ignore any
commercial television broadcasting service provided under a
licence allocated under section 38c.
(5D) For the purposes of paragraphs (3)(hb) and (n) and (5B)(d), in
determining the most efficient use of the spectrum, the ACMA is to
have regard to:
(a) the need for spectrum to be made available for allocation for
the purposes of the transmission of datacasting services
under, and in accordance with the conditions of, datacasting
licences; and
(b) such other matters as the ACMA considers relevant.
(6) The objective mentioned in paragraph (3)(g) (which deals with
co-location of transmitters) does not prevent Part A of the
commercial television conversion scheme from making provision
for the location of digital transmitters otherwise than as mentioned
in that paragraph, where the ACMA is satisfied that an alternative
location is appropriate having regard to:
(a) the remaining objectives set out in subclause (3); and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Commercial television Part 2
Clause 6
Broadcasting Services Act 1992 37
(b) the costs that are likely to be incurred by the licensee
concerned; and
(c) such other matters (if any) as the ACMA considers relevant.
Remote licence areas—start-up of digital transmission
(6A) Part B of the commercial television conversion scheme must be
directed towards ensuring the achievement of the policy objective
that each holder of a commercial television broadcasting licence
for a remote licence area is required to commence transmitting the
commercial television broadcasting service concerned in SDTV
digital mode in that area by such date as the ACMA determines
under the scheme.
Remote licence areas—simulcast period
(7) Part B of the commercial television conversion scheme may make
provision for a transitional period for a specified remote licence
area, that is to be known as the simulcast period, throughout which
the holder of a commercial television broadcasting licence for that
area is required to transmit simultaneously the commercial
television broadcasting service concerned in both analog mode and
SDTV digital mode in that area.
(7A) The simulcast period for a particular remote licence area:
(a) is to begin on the date determined in relation to that area in
accordance with subclause (6A); and
(b) is to run for such period as the ACMA determines under the
scheme.
Note: See also clause 6B.
Special rules for section 38B licences in remote licence areas
(7B) Special rules apply to an exempt remote area service for a remote
licence area for which an exempt licence has been allocated if
written notice is given to the ACMA electing that this subclause
applies by:
(a) the 2 existing licensees for that licence area (where the
exempt licence is allocated to a joint-venture company under
subsection 38B(5)); or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 2 Commercial television
Clause 6
38 Broadcasting Services Act 1992
(b) the licensee to whom the exempt licence is allocated (where
the exempt licence is allocated under subsection 38B(6), (7),
(8) or (9)).
The notice must be given within the 12-month period beginning at
the later of the following:
(c) when the exempt licence is allocated;
(d) the commencement of this paragraph.
(7C) The election remains in force for a company until:
(a) it is revoked, by written notice given to the ACMA, by:
(i) a company that made the election; or
(ii) if the election was made in relation to an exempt licence
allocated under subsection 38B(5) and a parent licence
has been transferred—by the licensee of the parent
licence; or
(iii) if the election was made in relation to an exempt licence
allocated under subsection 38B(6), (7), (8) or (9) and
the exempt licence has been transferred—by the
licensee of the exempt licence; and
(b) the ACMA approves the revocation under clause 7B.
(7F) An exempt remote area service for a remote licence area is:
(a) each of these:
(i) a commercial television broadcasting service provided
by a joint-venture company under an exempt licence
that was allocated to the company under
subsection 38B(5) for that licence area; and
(ii) the commercial television broadcasting services
provided under the parent licences for that licence area;
or
(b) each of these:
(i) a commercial television broadcasting service provided
by a licensee under an exempt licence that was allocated
to the licensee under subsection 38B(6), (7), (8) or (9)
for that licence area; and
(ii) each other commercial television broadcasting service
provided by that licensee for that licence area; or
(c) a commercial television broadcasting service provided by a
licensee under an exempt licence for that licence area that is
transferred to the licensee; or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Commercial television Part 2
Clause 6
Broadcasting Services Act 1992 39
(d) a commercial television broadcasting service provided under
a parent licence for that licence area that is transferred to the
licensee.
(7G) Subclauses (7) and (7A) do not apply to an exempt remote area
service provided under an exempt licence while an election under
subclause (7B) is in force for the service.
(7H) Part B of the commercial television conversion scheme must be
directed towards ensuring the achievement of the policy objective
that each exempt remote area service for a remote licence area
should be authorised to be transmitted in SDTV digital mode using
multi-channelling transmission capacity while an election under
subclause (7B) is in force for the service.
HDTV multi-channelled commercial television broadcasting
services
(7J) This clause does not apply to a HDTV multi-channelled
commercial television broadcasting service.
SDTV multi-channelled commercial television broadcasting
services
(7JA) This clause does not apply to a SDTV multi-channelled
commercial television broadcasting service.
Licences allocated under section 36 on or after 1 January 2007
(7K) This clause does not apply in relation to a commercial television
broadcasting licence if the licence was allocated under section 36
on or after 1 January 2007.
Licences allocated under section 38C
(7KA) This clause does not apply to a commercial television broadcasting
licence allocated under section 38c.
Licences allocated under subsection 40(1) on or after 1 January
2007
(7L) This clause does not apply in relation to a commercial television
broadcasting licence if the licence was allocated under
subsection 40(1) on or after 1 January 2007.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 2 Commercial television
Clause 6
40 Broadcasting Services Act 1992
Simulcasting
(8) In determining, for the purposes of paragraph (3)(c) and
subclause (7), whether the holder of a commercial television
broadcasting licence transmits simultaneously the commercial
television broadcasting service concerned in both analog mode and
SDTV digital mode:
(a) if a relevant determination is in force under subclause (9)—
ignore any advertising or sponsorship matter covered by the
determination, so long as the licensee complies with such
conditions (if any) as are specified in the determination; and
(b) if a relevant determination is in force under subclause (10)—
ignore any television programs covered by the determination,
so long as the licensee complies with such conditions (if any)
as are specified in the determination; and
(c) ignore any digital program-enhancement content (as defined
by subclause (14)); and
(d) ignore a particular television program transmitted using
multi-channelling transmission capacity, where:
(i) the program is a scheduled program that provides live
coverage of a designated event (as defined by
subclause (20)); and
(ii) the other television program broadcast using that
multi-channelling transmission capacity is a regularly
scheduled news program; and
(iii) the end of the designated event is delayed for reasons
that are not within the control of the licensee or of the
person (if any) who supplied the first-mentioned
program to the licensee (either directly or indirectly
through one or more interposed persons); and
(iv) the sole purpose of the use of the multi-channelling
transmission capacity is to allow viewers of the SDTV
version of the commercial television broadcasting
service to choose between viewing the regularly
scheduled news program and viewing so much of the
designated event as overlaps the other television
program; and
(e) ignore an electronic program guide (as defined by
subclause (24)).
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Commercial television Part 2
Clause 6
Broadcasting Services Act 1992 41
(8A) For the purposes of this Act (other than paragraph (3)(c) or
subclauses (7), (8) and (11) of this clause or Division 2 of Part 4 of
this Schedule) and any other law of the Commonwealth, if the
holder of a commercial television broadcasting licence transmits
matter that is required to be ignored by paragraph (8)(c), (d) or (e)
of this clause, that matter is taken to be part of the commercial
television broadcasting service concerned.
(9) The ACMA may, by writing, determine that paragraph (8)(a)
applies to specified advertising or sponsorship matter transmitted
by a specified commercial television broadcasting licensee during a
specified period. The specified advertising or sponsorship matter
may consist of all advertising or sponsorship matter transmitted by
the licensee concerned. The specified period may consist of the
simulcast period for the licence area concerned.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(10) The ACMA may, by writing, determine that paragraph (8)(b)
applies to specified television programs transmitted by a specified
commercial television broadcasting licensee during a specified
period.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(11) The ACMA must not make a determination under subclause (9) or
(10) unless the ACMA is satisfied that, if it were assumed that the
determination were made, the version of the commercial television
broadcasting service transmitted in SDTV digital mode will be
substantially the same as the version of the service transmitted in
analog mode.
(12) A determination under subclause (9) or (10) is a disallowable
instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
(13) A reference in this clause to advertising or sponsorship matter is a
reference to advertising or sponsorship matter (whether or not of a
commercial kind).
Digital program-enhancement content
(14) For the purposes of this clause, digital program-enhancement
content is content:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 2 Commercial television
Clause 6
42 Broadcasting Services Act 1992
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or
otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;
where:
(g) the content is transmitted using a digital modulation
technique; and
(h) the sole purpose of the transmission of the content is to
enhance a television program (the primary program); and
(i) the subject matter of the content is closely and directly linked
to the subject matter of the primary program; and
(j) the licensee transmits simultaneously the content and the
primary program; and
(k) either:
(i) the licensee transmits simultaneously the primary
program in both analog mode and SDTV digital mode;
or
(ii) the primary program is covered by a determination
under subclause (9) or (10).
Note: For example, if the primary program is live coverage of a tennis
match, the digital program-enhancement content could consist of any
or all of the following:
(a) the match from different camera angles;
(b) each player’s results in past matches;
(c) video highlights from those past matches;
(d) each player’s ranking and career highlights.
Designated event
(20) For the purposes of this clause, a designated event is:
(a) a sporting event; or
(b) a declared designated event (as defined by subclause (21)).
(21) The ACMA may, by writing, determine that a specified event is a
declared designated event for the purposes of this clause.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Commercial television Part 2
Clause 6A
Broadcasting Services Act 1992 43
(22) A determination under subclause (21) has effect accordingly.
(23) A determination under subclause (21) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act 1901.
Electronic program guide
(24) For the purposes of this clause, an electronic program guide is
matter transmitted using a uniform digital modulation technique,
where the matter consists of no more than:
(a) a schedule of the television programs provided by:
(i) the commercial television broadcasting service
transmitting the matter; or
(ii) all of the commercial television broadcasting services
and all of the national television broadcasting services;
or
(b) a combination of:
(i) a schedule covered by paragraph (a); and
(ii) items of factual information, and/or items of comment,
about some or all of the programs in the schedule,
where each item is brief and in the form of text; or
(c) a combination of:
(i) a schedule covered by paragraph (a); and
(ii) a facility the sole purpose of which is to enable an
end-user to select, and commence viewing, one or more
of the programs in the schedule; or
(d) a combination of:
(i) a schedule covered by paragraph (a); and
(ii) items of factual information, and/or items of comment,
about some or all of the programs in the schedule,
where each item is brief and in the form of text; and
(iii) a facility the sole purpose of which is to enable an
end-user to select, and commence viewing, one or more
of the programs in the schedule.
6A Determination of simulcast period—metropolitan and regional
licence areas
(1) The Minister may, by legislative instrument, determine a period for
the purposes of the application of subparagraph 6(3)(c)(ii) to a
specified metropolitan licence area.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 2 Commercial television
Clause 6A
44 Broadcasting Services Act 1992
(2) The Minister may, by legislative instrument, determine a period for
the purposes of the application of subparagraph 6(3)(c)(iia) to a
specified regional licence area.
(3) A period determined under subclause (1) must end before the end
of 31 December 2013.
Note: See subclause (11).
(4) A period determined under subclause (2) must end before the end
of 31 December 2013.
Note: See subclause (11).
(5) A subclause (1) determination is irrevocable.
(6) A subclause (2) determination is irrevocable.
Variation
(7) The Minister may, by legislative instrument, vary:
(a) a subclause (1) determination; or
(b) a subclause (2) determination.
(8) The Minister must not vary:
(a) a subclause (1) determination; or
(b) a subclause (2) determination;
after the end of the period specified in the determination.
(10) If there is a variation of:
(a) a subclause (1) determination; or
(b) a subclause (2) determination;
the end of the period specified in the varied determination must not
be later than the end of 31 December 2013.
Note: See subclause (11).
(11) If there is a variation (the current variation) of:
(a) a subclause (1) determination; or
(b) a subclause (2) determination;
subclauses (3), (4) and (10) do not apply, so long as:
(c) the end of the period specified in the determination, as it
stood before the current variation, would be likely to result in
significant difficulties of a technical or engineering nature
for:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Commercial television Part 2
Clause 6B
Broadcasting Services Act 1992 45
(i) a commercial television broadcasting licensee for the
licence area concerned; or
(ii) a national broadcaster; and
(d) those difficulties could not reasonably have been foreseen by
the commercial television broadcasting licensee or the
national broadcaster, as the case requires, as at 6 months
before the end of the period specified in the determination as
it stood before the current variation; and
(e) the end of the period specified in the varied determination is
not later than the end of 30 June 2014.
(12) Subclause (7) does not limit the application of subsection 33(3) of
the Acts Interpretation Act 1901 to other instruments under this
Act.
Consultation
(13) Before making or varying:
(a) a subclause (1) determination; or
(b) a subclause (2) determination;
the Minister must consult the ACMA.
6B Determination of simulcast period—remote licence areas
(1) The ACMA must not determine a period for the purposes of
paragraph 6(7A)(b) if the period ends after 31 December 2013.
(2) Subclause (1) does not apply in such circumstances (if any) as are
specified in a legislative instrument made by the Minister.
7 Scheme may confer administrative powers on the ACMA
The commercial television conversion scheme may make provision
with respect to a matter by conferring on the ACMA a power to
make a decision of an administrative character.
7A Scheme may confer power to make digital channel plans
(1) The commercial television conversion scheme may provide for the
ACMA to make one or more plans (digital channel plans) that:
(a) allot channels to holders of commercial television
broadcasting licences; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 2 Commercial television
Clause 7AA
46 Broadcasting Services Act 1992
(b) set out any technical limitations on the use of a particular
channel that the ACMA believes should be shown in the
plan; and
(c) set out whether the use of a channel depends on any event or
circumstances described in the plan.
(2) The commercial television conversion scheme may provide that a
digital channel plan may include other matters.
(3) The commercial television conversion scheme may provide for the
ACMA to vary a digital channel plan.
(4) Subclause (1) does not apply in relation to a commercial television
broadcasting licence allocated under section 38c.
7AA Allotment of channels after the television licence area plan
comes into force
(1) A digital channel plan, to the extent to which it relates to a
particular licence area, ceases to have effect when the television
licence area plan for that area comes into force.
(2) The commercial television conversion scheme, to the extent to
which it allots channels for a particular licence area, ceases to have
effect when the television licence area plan for that area comes into
force.
7B Revocation of multi-channelling election
Scope
(1) This clause applies if a commercial television broadcasting
licensee gives the ACMA a notice of revocation under
subclause 6(5BA) or (7C).
Approval of revocation
(2) If the ACMA is satisfied that there is sufficient radiofrequency
spectrum available, the ACMA must, by notice in writing given to
the licensee:
(a) approve the revocation; and
(b) specify a day as the day on which the revocation takes effect;
and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Commercial television Part 2
Clause 8
Broadcasting Services Act 1992 47
(c) vary the relevant digital channel plan under the commercial
television conversion scheme to allot a channel to the
licensee.
(3) For the purposes of subclause (2), any part of the spectrum covered
by a determination under subsection 34(3) is taken not to be
available.
(4) The ACMA may, before the day specified under paragraph (2)(b),
by notice in writing, vary the day on which the revocation takes
effect.
Refusal to approve revocation
(5) If the ACMA refuses to approve the revocation, the ACMA must
give written notice of the refusal to the licensee.
8 Transmitter licences
Grant of additional spectrum for digital transmission
(1) The commercial television conversion scheme must make
provision for the issue of transmitter licences authorising
transmissions of commercial television broadcasting services in
digital mode.
Return of spectrum if digital transmission does not begin
(2) Part A of the commercial television conversion scheme must make
provision for requiring the holder of a commercial television
broadcasting licence to surrender one or more transmitter licences
authorising digital transmission if:
(a) the holder does not commence digital transmission as
mentioned in paragraph 6(3)(a) or (b) of this Schedule; and
(b) the holder does not satisfy the ACMA that there are
exceptional circumstances.
Return of spectrum if digital transmission does not continue
throughout the simulcast period
(3) Part A of the commercial television conversion scheme must make
provision for requiring the holder of a commercial television
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 2 Commercial television
Clause 8
48 Broadcasting Services Act 1992
broadcasting licence to surrender one or more transmitter licences
authorising digital transmission if:
(a) the holder commences digital transmission as mentioned in
paragraph 6(3)(a) or (b) of this Schedule; and
(b) the holder ceases digital transmission during the simulcast
period for the licence area concerned; and
(c) under the scheme, the ACMA gives the holder a written
direction to:
(i) resume digital transmission in that area within the
period specified in the direction (being a period that is
not longer than one month); and
(ii) continue digital transmission throughout the simulcast
period for that area; and
(d) the holder does not comply with a direction referred to in
paragraph (c); and
(e) the holder does not satisfy the ACMA that there are
exceptional circumstances.
Return of spectrum if format and HDTV requirements contravened
(7) Part A of the commercial television conversion scheme must make
provision for requiring the holder of a commercial television
broadcasting licence for a licence area to surrender the transmitter
licence or licences that authorised the transmission of the
commercial television broadcasting service concerned in digital
mode in that area if:
(a) the holder contravenes:
(i) paragraph 7(1)(ma) of Schedule 2; or
(ii) a SDTV commercial television format standard; or
(iii) a HDTV commercial television format standard; or
(iv) subclause 37E(1); or
(v) a standard under subclause 37E(3); and
(b) under the scheme, the ACMA gives the holder a written
direction to comply with that provision or standard within the
period specified in the direction (being a period that is not
longer than one month); and
(c) the holder does not comply with a direction referred to in
paragraph (b); and
(d) the holder does not satisfy the ACMA that there are
exceptional circumstances.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Commercial television Part 2
Clause 8
Broadcasting Services Act 1992 49
(8) Subclause (7) does not prevent the commercial television
conversion scheme from making provision for the issue of a
transmitter licence to replace a licence that was surrendered on the
grounds of a contravention of a provision or standard mentioned in
subparagraph (7)(a)(i), (iii), (iv) or (v). However, the amount of
transmission capacity covered by the replacement licence must be
less than the amount of transmission capacity covered by the
surrendered licence.
Remote licence areas
(10) Part B of the commercial television conversion scheme may make
provision for requiring the holder of a commercial television
broadcasting licence to surrender one or more transmitter licences
authorising analog transmission or authorising digital transmission
if the holder does not comply with:
(a) a specified requirement of that Part of the scheme; or
(aa) paragraph 7(1)(ma) of Schedule 2; or
(b) paragraph 7(1)(mb) of Schedule 2; or
(c) a SDTV commercial television format standard; or
(d) a HDTV commercial television format standard; or
(e) a standard applicable to the holder under subclause 37G(1);
or
(f) a standard applicable to the holder under subclause 37G(2).
(10A) Subclause (10) does not prevent the commercial television
conversion scheme from making provision for the issue of a
transmitter licence to replace a licence that was surrendered on the
grounds of a contravention of the provision mentioned in
paragraph (10)(b) or a standard mentioned in paragraph (10)(d), (e)
or (f). However, the amount of transmission capacity covered by
the replacement licence must be less than the amount of
transmission capacity covered by the surrendered licence.
(11) Part B of the commercial television conversion scheme may make
provision for the variation of the conditions of a transmitter licence
that authorised analog transmission of a commercial television
broadcasting service in a remote licence area so as to ensure that
the licence authorises digital transmission of that service in that
area.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 2 Commercial television
Clause 9
50 Broadcasting Services Act 1992
9 Submission of implementation plans to the ACMA
(1) The commercial television conversion scheme must make
provision for requiring holders of commercial television
broadcasting licences to prepare, and submit to the ACMA, one or
more implementation plans relating to digital transmission, where
the implementation plans are in accordance with the scheme.
(1A) Subclause (1) does not apply to a HDTV multi-channelled
commercial television broadcasting service.
(1AA) Subclause (1) does not apply to a SDTV multi-channelled
commercial television broadcasting service.
(1B) Subclause (1) does not apply in relation to a commercial television
broadcasting licence if the licence was allocated under section 36
on or after 1 January 2007.
(1BA) Subclause (1) does not apply in relation to a commercial television
broadcasting licence allocated under section 38c.
(1C) Subclause (1) does not apply in relation to a commercial television
broadcasting licence if the licence was allocated under
subsection 40(1) on or after 1 January 2007.
(2) The commercial television conversion scheme may provide for
variation of implementation plans submitted to the ACMA by
holders of commercial television broadcasting licences.
9A Areas exempt from digital transmission requirements—
commercial television broadcasting licensees
Areas exempt from digital transmission requirements
(1) If an area is an exempt digital transmission area in relation to a
commercial television broadcasting licence, the licensee is not
required to comply with:
(a) the commercial television conversion scheme; or
(b) an implementation plan;
to the extent that the scheme or plan would require the licensee to
transmit a commercial television broadcasting service in digital
mode in the exempt digital transmission area.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Commercial television Part 2
Clause 9A
Broadcasting Services Act 1992 51
Determination
(2) On application by the holder of a commercial television
broadcasting licence, the Minister may, by legislative instrument,
determine that, for the purposes of this clause, a specified area that
is within the licence area is an exempt digital transmission area in
relation to the licence.
(3) The Minister must not make a determination under subclause (2)
that specifies an area that is within the licence area of a commercial
television broadcasting licence unless, when the determination is
made:
(a) the specified area does not have coverage of any commercial
television broadcasting service that is:
(i) provided by the commercial television broadcasting
licensee in the licence area; and
(ii) transmitted in digital mode; and
(b) the Minister is satisfied that:
(i) fewer than 500 people reside in the specified area; or
(ii) the specified area is an underserviced area; and
(c) either:
(i) commercial television broadcasting services are
provided in the specified area under a commercial
television broadcasting licence allocated under
section 38C; or
(ii) the Minister is satisfied that there is another way in
which people in the specified area can, or will be able
to, view an adequate and comprehensive range of
commercial television broadcasting services and
national television broadcasting services.
(4) In considering, for the purposes of subparagraph (3)(b)(i), whether
fewer than 500 people reside in a specified area, the Minister must
have regard to the latest resident population statistics published by
the Australian Statistician.
Underserviced areas
(5) For the purposes of subparagraph (3)(b)(ii), a specified area within
a licence area is an underserviced area if:
(a) the specified area does not have coverage of one or more
commercial television broadcasting services that are:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 2 Commercial television
Clause 9A
52 Broadcasting Services Act 1992
(i) provided in the licence area; and
(ii) transmitted in analog mode; or
(b) the specified area does not have coverage of one or more
national television broadcasting services that are:
(i) provided in the coverage area that corresponds to the
licence area; and
(ii) transmitted in analog mode.
(6) For the purposes of subclause (5), disregard a service that does no
more than:
(a) re-transmit programs that are transmitted by a commercial
television broadcasting service; or
(b) re-transmit programs that are transmitted by a national
television broadcasting service.
(7) For the purposes of subparagraph (3)(b)(ii), a specified area within
a licence area is an underserviced area if:
(a) the specified area does not, or will not, have coverage of the
commercial television broadcasting services that are:
(i) provided in the licence area by a person other than the
commercial television broadcasting licensee; and
(ii) transmitted in digital mode; or
(b) the specified area does not, or will not, have coverage of the
national television broadcasting services that are:
(i) provided in the coverage area that corresponds to the
licence area; and
(ii) transmitted in digital mode.
(8) A reference in subclause (7) to a commercial television
broadcasting service includes a reference to a service that does no
more than re-transmit programs that are transmitted by a
commercial television broadcasting service.
(9) A reference in subclause (7) to a national television broadcasting
service includes a reference to a service that does no more than
re-transmit programs that are transmitted by a national television
broadcasting service.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Commercial television Part 2
Clause 10
Broadcasting Services Act 1992 53
10 Amendment of certain plans and guidelines
(1) The commercial television conversion scheme may amend the
frequency allotment plan or a licence area plan.
(2) The commercial television conversion scheme may amend
technical planning guidelines in force under section 33.
(3) Subclauses (1) and (2) do not limit the ACMA’s powers under
sections 25, 26 and 33.
11 Reviews and reports
The commercial television conversion scheme may provide for the
ACMA to conduct reviews, and report to the Minister, on specified
matters.
12 Ancillary or incidental provisions
The commercial television conversion scheme may contain such
ancillary or incidental provisions as the ACMA considers
appropriate.
13 ACMA to have regard to datacasting allocation power
(1) In formulating or varying the commercial television conversion
scheme, the ACMA must have regard to its power under
subsection 34(3) (which deals with datacasting allocation).
(2) Subclause (1) does not limit the matters to which the ACMA may
have regard.
14 ACMA to have regard to special circumstances that apply in
remote licence areas
(1) In formulating or varying Part B of the commercial television
conversion scheme, the ACMA must have regard to the special
circumstances that apply to the transmission of commercial
television broadcasting services in remote licence areas.
(2) Subclause (1) does not limit the matters to which the ACMA may
have regard.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 2 Commercial television
Clause 15
54 Broadcasting Services Act 1992
15 Minister may give directions to the ACMA
(1) In formulating or varying the commercial television conversion
scheme, the ACMA must comply with any written directions given
to it by the Minister under this subclause.
(2) A direction under subclause (1) may be of a general or specific
nature.
(3) The Minister must arrange for a copy of a direction under
subclause (1) to be published in the Gazette within 14 days after
the direction is given.
16 Variation of scheme
(1) The commercial television conversion scheme may be varied, but
not revoked, in accordance with subsection 33(3) of the Acts
Interpretation Act 1901.
(2) Subclause (1) does not limit the application of subsection 33(3) of
the Acts Interpretation Act 1901 to other instruments under this
Act.
17 Scheme to be a disallowable instrument
An instrument under subclause 6(1) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act 1901.
18 Processes to be public
In formulating or varying the commercial television conversion
scheme, the ACMA must make provision for:
(a) public consultation; and
(b) consultation with holders of commercial television
broadcasting licences; and
(c) consultation with national broadcasters; and
(e) consultation with owners and operators of broadcasting
transmission towers.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
ABC/SBS television Part 3
Clause 19
Broadcasting Services Act 1992 55
Part 3—ABC/SBS television
19 National television conversion scheme
(1) As soon as practicable after the commencement of this clause, the
ACMA must, by writing, formulate a scheme (the national
television conversion scheme) for the conversion, over time, of the
transmission of national television broadcasting services from
analog mode to digital mode.
Note: Under clause 32, the scheme does not take effect until approved by the
Minister.
(2) The national television conversion scheme is to be divided into the
following Parts:
(a) Part A, which is to deal with coverage areas that are not
remote coverage areas;
(b) Part B, which is to deal with remote coverage areas.
Policy objectives
(3) Part A of the national television conversion scheme must be
directed towards ensuring the achievement of the following policy
objectives:
(a) the objective that each national broadcaster is required to
commence transmitting the national television broadcasting
service concerned in SDTV digital mode in a metropolitan
coverage area by such date as is ascertained in accordance
with an implementation plan that was given by the
broadcaster, and is in force, under clause 20;
(b) the objective that each national broadcaster is required to
commence transmitting the national television broadcasting
service concerned in SDTV digital mode in a regional
coverage area by such date as is ascertained in relation to that
area in accordance with an implementation plan that was
given by the broadcaster, and is in force, under clause 20;
(c) the objective that there should be a transitional period for a
coverage area, that is:
(i) to be known as the simulcast period; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 3 ABC/SBS television
Clause 19
56 Broadcasting Services Act 1992
(ii) to begin on the date mentioned in whichever of
paragraphs (a) and (b) is applicable; and
(iii) to end at the end of the simulcast period (within the
meaning of paragraph 6(3)(c) of this Schedule) for the
licence area that corresponds to that coverage area;
throughout which a national broadcaster is required to
transmit simultaneously the national television broadcasting
service concerned in both analog mode and SDTV digital
mode in so much of that coverage area as is not a digital-only
local market area;
(d) the objective that, throughout the simulcast period for a
coverage area, each national broadcaster should be
authorised, under one or more transmitter licences, to use one
or more channels to transmit the national television
broadcasting service concerned in digital mode in that area;
(e) the objective that each additional channel should occupy 7
MHz of bandwidth;
(f) the objective that, as soon as is practicable after the start of
the simulcast period for a coverage area, and throughout the
remainder of that period, the transmission of a national
television broadcasting service in SDTV digital mode in so
much of that area as is not a digital-only local market area
should achieve the same level of coverage and potential
reception quality as is achieved by the transmission of that
service in analog mode in so much of that area as is not a
digital-only local market area;
(g) the objective that, during the simulcast period for a coverage
area, there should, as far as is practicable, be co-location of:
(i) transmitters used by a national broadcaster to transmit
the national television broadcasting service concerned in
digital mode in so much of that area as is not a
digital-only local market area; and
(ii) transmitters used by the national broadcaster to transmit
that service in analog mode in so much of that area as is
not a digital-only local market area;
(ga) the objective that, during the simulcast period for a coverage
area, no transmissions of national television broadcasting
services in analog mode are to be made using a transmitter
located in so much of that area as is a digital-only local
market area;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
ABC/SBS television Part 3
Clause 19
Broadcasting Services Act 1992 57
(h) the objective that, at the end of the simulcast period for a
coverage area, all transmissions of national television
broadcasting services in analog mode in that area are to
cease;
(ha) the objective that, if the television licence area plan for the
licence area that corresponds to a coverage area comes into
force immediately after the end of the simulcast period for
that coverage area, each national broadcaster is to transmit
the national television broadcasting service concerned in
digital mode in that coverage area after the end of the
simulcast period using such channel or channels as are
allotted under the television licence area plan for that licence
area;
(hb) the objective that, if the television licence area plan for the
licence area that corresponds to a coverage area does not
come into force immediately after the end of the simulcast
period for that coverage area, each national broadcaster is to
transmit the national television broadcasting service
concerned in digital mode in that coverage area during the
period:
(i) beginning at the end of the simulcast period; and
(ii) ending immediately before the television licence area
plan comes into force;
using such channel or channels as the ACMA allots under the
scheme or a digital channel plan, having regard to:
(iii) the need to plan the most efficient use of the spectrum;
and
(iv) the other relevant policy objectives of the scheme;
(hc) the objective that, if the television licence area plan for the
licence area that corresponds to a coverage area does not
come into force immediately after the end of the simulcast
period for that coverage area, each national broadcaster is to
transmit the national television broadcasting service
concerned in digital mode in that coverage area after the
television licence area plan comes into force using such
channel or channels as are allotted under the television
licence area plan for that licence area;
(j) the objective that, after the end of the simulcast period for a
coverage area, the transmission of a national television
broadcasting service in SDTV digital mode in so much of
that area as was not a digital-only local market area should
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 3 ABC/SBS television
Clause 19
58 Broadcasting Services Act 1992
achieve the same level of coverage and potential reception
quality as was achieved by the transmission of that service in
analog mode in so much of that area as was not a digital-only
local market area immediately before the end of that period;
(ja) the objective that, after a local market area becomes a
digital-only local market area, the transmission of a national
television broadcasting service in SDTV digital mode in the
digital-only local market area should achieve the same level
of coverage and potential reception quality as was achieved
by the transmission of that service in analog mode in the
local market area immediately before the local market area
became a digital-only local market area;
(k) the objective that national broadcasters be permitted to use
any spare transmission capacity that is available on the
digital transmission channels for the purpose of the
transmission of datacasting services provided under, and in
accordance with the conditions of, datacasting licences or for
the purpose of the transmission of national radio broadcasting
services;
(l) the objective that the ACMA is to consult with national
broadcasters about the implementation of the scheme;
(m) the objective that, if the implementation of the scheme affects
particular broadcasting transmission towers, the ACMA is to
consult the owners and operators of those towers;
(n) the objective that, in allotting channels under the scheme or a
digital channel plan, the ACMA must have regard to:
(i) the need to plan the most efficient use of the spectrum;
and
(ii) the other relevant policy objectives of the scheme.
(3A) The ACMA must consult with national broadcasters about the
implementation of the scheme.
(4) Subclause (3) does not prevent the national television conversion
scheme from allowing a national broadcaster to transmit the
national television broadcasting service concerned in digital mode
in a regional coverage area during the whole or a part of the period:
(a) beginning on 1 January 2001; and
(b) ending immediately before the start of the simulcast period
for that area;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
ABC/SBS television Part 3
Clause 19
Broadcasting Services Act 1992 59
so long as that transmission complies with such requirements as are
ascertained in accordance with the scheme.
(5) Subclause (3) does not prevent Part A of the national television
conversion scheme from allowing a national broadcaster to
transmit, on a test basis, the national television broadcasting
service concerned in digital mode in a coverage area before the
start of the simulcast period for that area, so long as that
transmission:
(a) complies with such requirements as are ascertained in
accordance with that Part of the scheme; and
(b) occurs during a period ascertained in accordance with that
Part of the scheme.
(5A) For the purposes of paragraphs (3)(hb) and (n), in determining the
most efficient use of the spectrum, the ACMA is to have regard to:
(a) the need for spectrum to be made available for allocation for
the purposes of the transmission of datacasting services
under, and in accordance with the conditions of, datacasting
licences; and
(b) such other matters as the ACMA considers relevant.
(6) The objective mentioned in paragraph (3)(g) (which deals with
co-location of transmitters) does not prevent Part A of the national
television conversion scheme from making provision for the
location of digital transmitters otherwise than as mentioned in that
paragraph, where the ACMA is satisfied that an alternative location
is appropriate having regard to:
(a) the remaining objectives set out in subclause (3); and
(b) the costs that are likely to be incurred by the national
broadcaster concerned; and
(c) such other matters (if any) as the ACMA considers relevant.
Remote coverage areas—start-up of digital transmission
(6A) Part B of the national television conversion scheme must be
directed towards ensuring the achievement of the policy objective
that each national broadcaster is required to commence
transmitting the national television broadcasting service concerned
in SDTV digital mode in a remote coverage area by such date as is
ascertained in relation to that area in accordance with an
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 3 ABC/SBS television
Clause 19
60 Broadcasting Services Act 1992
implementation plan that was given by the broadcaster, and is in
force, under clause 20.
Remote coverage areas—simulcast period
(7) Part B of the national television conversion scheme may make
provision for a transitional period for a specified remote coverage
area, that is to be known as the simulcast period, throughout which
a national broadcaster is required to transmit simultaneously the
national television broadcasting service concerned in both analog
mode and SDTV digital mode in that area.
(7A) The simulcast period for a particular remote coverage area:
(a) is to begin on the date mentioned in subclause (6A); and
(b) is to end at the end of the simulcast period (within the
meaning of subclause 6(7)) for the licence area that
corresponds to that coverage area.
SDTV multi-channelled national television broadcasting services
(7B) This clause does not apply to a SDTV multi-channelled national
television broadcasting service.
HDTV multi-channelled national television broadcasting services
(7C) This clause does not apply to a HDTV multi-channelled national
television broadcasting service.
Simulcasting
(8) In determining, for the purposes of paragraph (3)(c) and
subclause (7), whether a national broadcaster transmits
simultaneously the national television broadcasting service
concerned in both analog mode and SDTV digital mode:
(a) in the case of the Special Broadcasting Service Corporation
where a relevant determination is in force under
subclause (9)—ignore any advertising or sponsorship matter
covered by the determination, so long as the Special
Broadcasting Service Corporation complies with such
conditions (if any) as are specified in the determination; and
(b) if a relevant determination is in force under subclause (10)—
ignore any television programs covered by the determination,
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
ABC/SBS television Part 3
Clause 19
Broadcasting Services Act 1992 61
so long as the national broadcaster complies with such
conditions (if any) as are specified in the determination; and
(c) ignore any digital program-enhancement content (as defined
by subclause (14)); and
(d) ignore a particular television program transmitted using
multi-channelling transmission capacity, where:
(i) the program is a scheduled program that provides live
coverage of a designated event (as defined by
subclause (20)); and
(ii) the other television program broadcast using that
multi-channelling transmission capacity is a regularly
scheduled news program; and
(iii) the end of the designated event is delayed for reasons
that are not within the control of the national
broadcaster or of the person (if any) who supplied the
first-mentioned program to the national broadcaster
(either directly or indirectly through one or more
interposed persons); and
(iv) the sole purpose of the use of the multi-channelling
transmission capacity is to allow viewers of the SDTV
version of the national television broadcasting service to
choose between viewing the regularly scheduled news
program and viewing so much of the designated event
as overlaps the other television program; and
(e) ignore an electronic program guide (as defined by
subclause (24)).
(8A) For the purposes of this Act (other than paragraph (3)(c) or
subclauses (7), (8) and (11) of this clause or Division 2 of Part 4 of
this Schedule) and any other law of the Commonwealth, if a
national broadcaster transmits matter that is required to be ignored
by paragraph (8)(c), (d) or (e) of this clause, that matter is taken to
be part of the national television broadcasting service concerned.
(9) The ACMA may, by writing, determine that paragraph (8)(a)
applies to specified advertising or sponsorship matter transmitted
by the Special Broadcasting Service Corporation during a specified
period. The specified advertising or sponsorship matter may
consist of all advertising or sponsorship matter transmitted by the
Special Broadcasting Service Corporation. The specified period
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 3 ABC/SBS television
Clause 19
62 Broadcasting Services Act 1992
may consist of the simulcast period for the coverage area
concerned.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(10) The ACMA may, by writing, determine that paragraph (8)(b)
applies to specified television programs transmitted by a specified
national broadcaster during a specified period.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(11) The ACMA must not make a determination under subclause (9) or
(10) unless the ACMA is satisfied that, if it were assumed that the
determination were made, the version of the national television
broadcasting service transmitted in SDTV digital mode will be
substantially the same as the version of the service transmitted in
analog mode.
(12) A determination under subclause (9) or (10) is a disallowable
instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
(13) A reference in this clause to advertising or sponsorship matter is a
reference to advertising or sponsorship matter (whether or not of a
commercial kind).
Digital program-enhancement content
(14) For the purposes of this clause, digital program-enhancement
content is content:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or
otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;
where:
(g) the content is transmitted using a digital modulation
technique; and
(h) the sole purpose of the transmission of the content is to
enhance a television program (the primary program); and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
ABC/SBS television Part 3
Clause 19
Broadcasting Services Act 1992 63
(i) the subject matter of the content is closely and directly linked
to the subject matter of the primary program; and
(j) the national broadcaster transmits simultaneously the content
and the primary program; and
(k) either:
(i) the national broadcaster transmits simultaneously the
primary program in both analog mode and SDTV digital
mode; or
(ii) the primary program is covered by a determination
under subclause (9) or (10).
Note: For example, if the primary program is live coverage of a tennis
match, the digital program-enhancement content could consist of any
or all of the following:
(a) the match from different camera angles;
(b) each player’s results in past matches;
(c) video highlights from those past matches;
(d) each player’s ranking and career highlights.
Designated event
(20) For the purposes of this clause, a designated event is:
(a) a sporting event; or
(b) a declared designated event (as defined by subclause (21)).
(21) The ACMA may, by writing, determine that a specified event is a
declared designated event for the purposes of this clause.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(22) A determination under subclause (21) has effect accordingly.
(23) A determination under subclause (21) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act 1901.
Electronic program guide
(24) For the purposes of this clause, an electronic program guide is
matter transmitted using a uniform digital modulation technique,
where the matter consists of no more than:
(a) a schedule of the television programs provided by:
(i) the national television broadcasting service transmitting
the matter; or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 3 ABC/SBS television
Clause 20
64 Broadcasting Services Act 1992
(ii) all of the commercial television broadcasting services
and all of the national television broadcasting services;
or
(b) a combination of:
(i) a schedule covered by paragraph (a); and
(ii) items of factual information, and/or items of comment,
about some or all of the programs in the schedule,
where each item is brief and in the form of text; or
(c) a combination of:
(i) a schedule covered by paragraph (a); and
(ii) a facility the sole purpose of which is to enable an
end-user to select, and commence viewing, one or more
of the programs in the schedule; or
(d) a combination of:
(i) a schedule covered by paragraph (a); and
(ii) items of factual information, and/or items of comment,
about some or all of the programs in the schedule,
where each item is brief and in the form of text; and
(iii) a facility the sole purpose of which is to enable an
end-user to select, and commence viewing, one or more
of the programs in the schedule.
20 National broadcasters to give implementation plans to the
Minister
(1) As soon as practicable after the formulation of the national
television conversion scheme, a national broadcaster must give the
Minister one or more implementation plans relating to the
conversion, over time, of the transmission of the national television
broadcasting service concerned from analog mode to digital mode.
(1A) Subclause (1) does not apply to a SDTV multi-channelled national
television broadcasting service.
HDTV multi-channelled national television broadcasting services
(1B) This clause does not apply to a HDTV multi-channelled national
television broadcasting service.
(2) In preparing an implementation plan, a national broadcaster must
have regard to the following matters:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
ABC/SBS television Part 3
Clause 20
Broadcasting Services Act 1992 65
(a) in the case of an implementation plan that relates to a
coverage area that is not a remote coverage area—whether
the implementation plan is directed towards ensuring the
achievement of the following policy objectives:
(i) the objective that each national broadcaster should be
required to commence transmitting the national
broadcasting service concerned in digital mode in each
metropolitan coverage area on 1 January 2001;
(ii) the objective that each national broadcaster should be
required to commence transmitting the national
television broadcasting service concerned in digital
mode to regional coverage areas (other than remote
coverage areas) on or after 1 January 2001 so that all
regional coverage areas (other than remote coverage
areas) have digital transmission of the service by
1 January 2004;
(b) in the case of an implementation plan that relates to a
coverage area that is not a remote coverage area—the
objectives mentioned in subclause 19(3);
(c) in the case of an implementation plan that relates to a remote
coverage area—the special circumstances that apply to the
transmission of national television broadcasting services in
that area;
(d) such other matters (if any) as the national broadcaster
considers relevant.
(3) If an implementation plan is given to the Minister under this
clause, the Minister must:
(a) approve the implementation plan; or
(b) refuse to approve the implementation plan.
(4) In deciding whether to approve an implementation plan under this
clause, the Minister must have regard to the following matters:
(a) in the case of an implementation plan that relates to a
coverage area that is not a remote coverage area—whether
the implementation plan is directed towards ensuring the
achievement of the following policy objectives:
(i) the objective that each national broadcaster should be
required to commence transmitting the national
broadcasting service concerned in digital mode in each
metropolitan coverage area on 1 January 2001;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 3 ABC/SBS television
Clause 20
66 Broadcasting Services Act 1992
(ii) the objective that each national broadcaster should be
required to commence transmitting the national
television broadcasting service concerned in digital
mode to regional coverage areas (other than remote
coverage areas) on or after 1 January 2001 so that all
regional coverage areas (other than remote coverage
areas) have digital transmission of the service by
1 January 2004;
(b) in the case of an implementation plan that relates to a
coverage area that is not a remote coverage area—the
objectives mentioned in subclause 19(3);
(c) in the case of an implementation plan that relates to a remote
coverage area—the special circumstances that apply to the
transmission of national television broadcasting services in
that area;
(ca) whether there are other means by which people in the
coverage area to which the implementation plan relates can
view an adequate and comprehensive range of:
(i) commercial television broadcasting services transmitted
in digital mode; and
(ii) national television broadcasting services transmitted in
digital mode;
(cb) the extent to which commercial television broadcasting
services are being, or will be, transmitted in digital mode in
the coverage area to which the implementation plan relates;
(cc) the extent to which national television broadcasting services
are being, or will be, transmitted in digital mode in the
coverage area to which the implementation plan relates by a
national broadcaster other than the national broadcaster to
whom the implementation plan relates;
(d) such other matters (if any) as the Minister considers relevant.
(5) Before deciding whether to approve an implementation plan under
this clause, the Minister may direct the ACMA to give the Minister
a report about the matter.
(6) If the Minister approves an implementation plan under this clause,
the implementation plan comes into force on approval.
(7) If the Minister refuses to approve an implementation plan under
this clause, the Minister may, by written notice given to the
national broadcaster concerned:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
ABC/SBS television Part 3
Clause 21
Broadcasting Services Act 1992 67
(a) require the national broadcaster to give a fresh
implementation plan under subclause (1); and
(b) advise the national broadcaster that, if specified changes
were incorporated in the fresh plan, the Minister would be
disposed to approve the fresh plan.
The notice must also set out the reasons for the refusal.
(8) The Minister must cause copies of a notice under subclause (7) to
be laid before each House of the Parliament within 7 sitting days of
that House after the giving of the notice.
(9) A national broadcaster may give the Minister a variation of an
approved implementation plan that relates to the national
broadcaster. Subclauses (2) to (8) (inclusive) apply to the variation
of an implementation plan in a corresponding way to the way in
which they apply to an implementation plan.
(10) The Minister may, by writing, delegate to:
(a) the Secretary of the Department; or
(b) an SES employee or acting SES employee in the Department;
the Minister’s power to approve, or to refuse to approve, variations
to approved implementation plans.
21 Compliance with implementation plans
If an implementation plan given by a national broadcaster under
clause 20 is in force, the national broadcaster must comply with the
implementation plan.
21A Areas exempt from digital transmission requirements—
national broadcasters
Areas exempt from digital transmission requirements
(1) If an area is an exempt digital transmission area in relation to a
national broadcaster, the national broadcaster is not required:
(a) to comply with:
(i) the national television conversion scheme; or
(ii) an implementation plan;
to the extent that the scheme or plan would require the
national broadcaster to transmit a national television
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 3 ABC/SBS television
Clause 21A
68 Broadcasting Services Act 1992
broadcasting service in digital mode in the exempt digital
transmission area; or
(b) to submit an implementation plan under clause 20 that relates
to the exempt digital transmission area.
Determination
(2) On application by a national broadcaster, the Minister may, by
legislative instrument, determine that, for the purposes of this
clause, a specified area that is within a coverage area is an exempt
digital transmission area in relation to the national broadcaster.
(3) The Minister must not make a determination under subclause (2)
that specifies an area that is within a coverage area unless, when
the determination is made:
(a) the specified area does not have coverage of any national
television broadcasting service that is:
(i) provided by the national broadcaster in the coverage
area; and
(ii) transmitted in digital mode; and
(b) the Minister is satisfied that:
(i) fewer than 500 people reside in the specified area; or
(ii) the specified area is an underserviced area; and
(c) either:
(i) national television broadcasting services are provided in
the coverage area with the use of a satellite; or
(ii) the Minister is satisfied that there is another way in
which people in the specified area can, or will be able
to, view an adequate and comprehensive range of
commercial television broadcasting services and
national television broadcasting services.
(4) In considering, for the purposes of subparagraph (3)(b)(i), whether
fewer than 500 people reside in a specified area, the Minister must
have regard to the latest resident population statistics published by
the Australian Statistician.
Underserviced areas
(5) For the purposes of subparagraph (3)(b)(ii), a specified area within
a coverage area is an underserviced area if:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
ABC/SBS television Part 3
Clause 21A
Broadcasting Services Act 1992 69
(a) the specified area does not have coverage of one or more
commercial television broadcasting services that are:
(i) provided in a licence area that corresponds to the
coverage area; and
(ii) transmitted in analog mode; or
(b) the specified area does not have coverage of one or more
national television broadcasting services that are:
(i) provided in the coverage area; and
(ii) transmitted in analog mode.
(6) For the purposes of subclause (5), disregard a service that does no
more than:
(a) re-transmit programs that are transmitted by a commercial
television broadcasting service; or
(b) re-transmit programs that are transmitted by a national
television broadcasting service.
(7) For the purposes of subparagraph (3)(b)(ii), a specified area within
a coverage area is an underserviced area if:
(a) the specified area does not, or will not, have coverage of the
commercial television broadcasting services that are:
(i) provided in a licence area that corresponds to the
coverage area; and
(ii) transmitted in digital mode; or
(b) the specified area does not, or will not, have coverage of the
national television broadcasting services that are:
(i) provided in the coverage area; and
(ii) transmitted in digital mode.
(8) A reference in subclause (7) to a commercial television
broadcasting service includes a reference to a service that does no
more than re-transmit programs that are transmitted by a
commercial television broadcasting service.
(9) A reference in subclause (7) to a national television broadcasting
service includes a reference to a service that does no more than
re-transmit programs that are transmitted by a national television
broadcasting service.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 3 ABC/SBS television
Clause 22
70 Broadcasting Services Act 1992
22 Scheme may confer administrative powers on the ACMA
The national television conversion scheme may make provision
with respect to a matter by conferring on the ACMA a power to
make a decision of an administrative character.
22A Scheme may confer power to make digital channel plans
(1) The national television conversion scheme may provide for the
ACMA to make one or more plans (digital channel plans) that:
(a) allot channels to national broadcasters; and
(b) set out any technical limitations on the use of a particular
channel that the ACMA believes should be shown in the
plan; and
(c) set out whether the use of a channel depends on any event or
circumstances described in the plan.
(2) The national television conversion scheme may provide that a
digital channel plan may include other matters.
(3) The national television conversion scheme may provide for the
ACMA to vary a digital channel plan.
22AA Allotment of channels after the television licence area plan
comes into force
(1) A digital channel plan, to the extent to which it relates to a
particular coverage area, ceases to have effect when the television
licence area plan for the licence area that corresponds to the
coverage area comes into force.
(2) The national television conversion scheme, to the extent to which it
allots channels for a particular coverage area, ceases to have effect
when the television licence area plan for the licence area that
corresponds to the coverage area comes into force.
23 Transmitter licences
Grant of additional spectrum for digital transmission
(1) The national television conversion scheme must make provision
for the issue of transmitter licences authorising transmissions of
national television broadcasting services in digital mode.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
ABC/SBS television Part 3
Clause 23
Broadcasting Services Act 1992 71
Return of spectrum if digital transmission does not begin
(2) Part A of the national television conversion scheme must make
provision for requiring a national broadcaster to surrender one or
more transmitter licences authorising digital transmission if:
(a) the national broadcaster does not commence digital
transmission as mentioned in paragraph 19(3)(a) or (b) of this
Schedule; and
(b) the national broadcaster does not satisfy the ACMA that
there are exceptional circumstances.
Return of spectrum if digital transmission does not continue
throughout the simulcast period
(3) Part A of the national television conversion scheme must make
provision for requiring a national broadcaster to surrender one or
more transmitter licences authorising digital transmission if:
(a) the national broadcaster commences digital transmission as
mentioned in paragraph 19(3)(a) or (b) of this Schedule; and
(b) the national broadcaster ceases digital transmission during
the simulcast period for the coverage area concerned; and
(c) under the scheme, the ACMA gives the national broadcaster
a written direction to:
(i) resume digital transmission in that area within the
period specified in the direction (being a period that is
not longer than one month); and
(ii) continue digital transmission throughout the simulcast
period for that area; and
(d) the national broadcaster does not comply with a direction
referred to in paragraph (c); and
(e) the national broadcaster does not satisfy the ACMA that
there are exceptional circumstances.
Return of spectrum if format and HDTV requirements contravened
(7) Part A of the national television conversion scheme must make
provision for requiring a national broadcaster to surrender the
transmitter licence or licences that authorised the transmission of
the national television broadcasting service concerned in digital
mode in the coverage area concerned if:
(a) the national broadcaster contravenes:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 3 ABC/SBS television
Clause 23
72 Broadcasting Services Act 1992
(i) subclause 35AA(1); or
(ii) a SDTV national television format standard; or
(iii) a HDTV national television format standard; or
(iv) subclause 37F(1); or
(v) a standard under subclause 37F(3); and
(b) under the scheme, the ACMA gives the national broadcaster
a written direction to comply with that provision or standard
within the period specified in the direction (being a period
that is not longer than one month); and
(c) the national broadcaster does not comply with a direction
referred to in paragraph (b); and
(d) the national broadcaster does not satisfy the ACMA that
there are exceptional circumstances.
(8) Subclause (7) does not prevent the national television conversion
scheme from making provision for the issue of a transmitter licence
to replace a licence that was surrendered on the grounds of a
contravention of a provision or standard mentioned in
subparagraph (7)(a)(i), (iii), (iv) or (v). However, the amount of
transmission capacity covered by the replacement licence must be
less than the amount of transmission capacity covered by the
surrendered licence.
Remote coverage areas
(10) Part B of the national television conversion scheme may make
provision for requiring a national broadcaster to surrender one or
more transmitter licences authorising analog transmission or
authorising digital transmission if the national broadcaster does not
comply with:
(a) a specified requirement of that Part of the scheme; or
(b) subclause 35AA(2); or
(c) a SDTV national television format standard; or
(d) a HDTV national television format standard; or
(e) a standard applicable to the national broadcaster under
subclause 37H(1); or
(f) a standard applicable to the national broadcaster under
subclause 37H(2).
(10A) Subclause (10) does not prevent the national television conversion
scheme from making provision for the issue of a transmitter licence
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
ABC/SBS television Part 3
Clause 24
Broadcasting Services Act 1992 73
to replace a licence that was surrendered on the grounds of a
contravention of the provision mentioned in paragraph (10)(b) or a
standard mentioned in paragraph (10)(d), (e) or (f). However, the
amount of transmission capacity covered by the replacement
licence must be less than the amount of transmission capacity
covered by the surrendered licence.
(11) Part B of the national television conversion scheme may make
provision for the variation of the conditions of a transmitter licence
that authorised analog transmission of a national television
broadcasting service in a remote coverage area so as to ensure that
the licence authorises digital transmission of that service in that
area.
24 Amendment of certain plans and guidelines
(1) The national television conversion scheme may amend the
frequency allotment plan or a licence area plan.
(2) The national television conversion scheme may amend technical
planning guidelines in force under section 33.
(3) Subclauses (1) and (2) do not limit the ACMA’s powers under
sections 25, 26 and 33.
25 Reviews and reports
The national television conversion scheme may provide for the
ACMA to conduct reviews, and report to the Minister, on specified
matters.
26 Ancillary or incidental provisions
The national television conversion scheme may contain such
ancillary or incidental provisions as the ACMA considers
appropriate.
27 ACMA to have regard to datacasting allocation power
(1) In formulating or varying the national television conversion
scheme, the ACMA must have regard to its power under
subsection 34(3) (which deals with datacasting allocation).
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 3 ABC/SBS television
Clause 28
74 Broadcasting Services Act 1992
(2) Subclause (1) does not limit the matters to which the ACMA may
have regard.
28 ACMA to have regard to special circumstances that apply in
remote coverage areas
(1) In formulating or varying Part B of the national television
conversion scheme, the ACMA must have regard to the special
circumstances that apply to the transmission of national television
broadcasting services in remote coverage areas.
(2) Subclause (1) does not limit the matters to which the ACMA may
have regard.
29 Minister may give directions to the ACMA
(1) In formulating or varying the national television conversion
scheme, the ACMA must comply with any written directions given
to it by the Minister under this subclause.
(2) A direction under subclause (1) may be of a general or specific
nature.
(3) The Minister must arrange for a copy of a direction under
subclause (1) to be published in the Gazette within 14 days after
the direction is given.
30 Variation of scheme
(1) The national television conversion scheme may be varied, but not
revoked, in accordance with subsection 33(3) of the Acts
Interpretation Act 1901.
(2) Subclause (1) does not limit the application of subsection 33(3) of
the Acts Interpretation Act 1901 to other instruments under this
Act.
31 Scheme to be a disallowable instrument
An instrument under subclause 19(1) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act 1901.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
ABC/SBS television Part 3
Clause 32
Broadcasting Services Act 1992 75
32 Scheme does not take effect until approved by the Minister
The national television conversion scheme, or a variation of the
scheme, does not take effect unless and until it is approved, in
writing, by the Minister.
33 Processes to be public
In formulating or varying the national television conversion
scheme, the ACMA must make provision for:
(a) public consultation; and
(b) consultation with national broadcasters; and
(c) consultation with holders of commercial television
broadcasting licences; and
(e) consultation with owners and operators of broadcasting
transmission towers.
34 Compliance with scheme
A national broadcaster must comply with the national television
conversion scheme.
35 Simulcasting requirements
(1) If there is a simulcast period for a coverage area, a national
broadcaster must not broadcast a television program in SDTV
digital mode in so much of that coverage area as is not a
digital-only local market area during the simulcast period for that
coverage area unless the program is broadcast simultaneously by
the national broadcaster in analog mode in so much of that
coverage area as is not a digital-only local market area.
(2) Subclause 19(8) applies to this clause in a corresponding way to
the way in which it applies to paragraph 19(3)(c) of this Schedule
and subclause 19(7) of this Schedule.
(3) This clause does not apply to a SDTV multi-channelled national
television broadcasting service.
35A Certain transmissions to be disregarded
(1) For the purposes of clauses 34 and 35, if:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 3 ABC/SBS television
Clause 35AA
76 Broadcasting Services Act 1992
(a) a transmitter licence was issued under section 100 of the
Radiocommunications Act 1992; and
(b) the transmitter licence authorises the operation of one or
more transmitters for transmitting one or more national
television broadcasting services in digital mode;
ignore any transmission of those services in digital mode by those
transmitters.
(2) For the purposes of clauses 34 and 35, ignore the broadcast of a
national television broadcasting service in analog mode in a
digital-only local market area if:
(a) the broadcast of the service in the digital-only local market
area occurs accidentally; or
(b) the broadcast of the service in the digital-only local market
area occurs as a necessary result of the provision of national
television broadcasting services outside the digital-only local
market area.
35AA National broadcasters must provide HDTV multi-channelled
national television broadcasting service during simulcast
period etc.
(1) If there is a simulcast period for a coverage area, a national
broadcaster must provide at least one HDTV multi-channelled
national television broadcasting service in the coverage area during
that period.
(2) If:
(a) there is a simulcast-equivalent period for a coverage area;
and
(b) under the regulations, a national broadcaster is required to
provide a HDTV multi-channelled national television
broadcasting service in the coverage area during that period;
the national broadcaster must comply with that requirement.
36 Digital transmitter not to be used to provide a subscription
television broadcasting service etc.
(1) If a national broadcaster holds a transmitter licence that authorises
the operation of a transmitter for transmitting national television
broadcasting services in digital mode, the national broadcaster
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
ABC/SBS television Part 3
Clause 36
Broadcasting Services Act 1992 77
must not operate, or permit the operation of, that transmitter to
transmit in digital mode:
(a) a commercial broadcasting service that provides radio
programs; or
(b) a subscription radio broadcasting service; or
(c) a subscription television broadcasting service; or
(d) a subscription radio narrowcasting service; or
(e) a subscription television narrowcasting service; or
(f) an open narrowcasting radio service; or
(g) an open narrowcasting television service.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4 Standards and HDTV quotas
Division 2 HDTV quotas and standards
Clause 37DAA
78 Broadcasting Services Act 1992
Part 4—Standards and HDTV quotas
Division 2—HDTV quotas and standards
37DAA This Division does not apply in relation to section 38C
licences
This Division does not apply in relation to a commercial television
broadcasting licence allocated under section 38c.
37DA This Division does not apply in relation to licences allocated
under subsection 40(1)
This Division does not apply in relation to a commercial television
broadcasting licence if the licence was allocated under
subsection 40(1).
37E Non-remote areas—HDTV quotas for commercial television
broadcasting licensees
(1) During the HDTV quota period for a commercial television
broadcasting licence, the licensee must transmit at least the HDTV
quota of high-definition television programs in HDTV digital mode
on the HDTV multi-channelled commercial television broadcasting
service provided by the licensee in the licence area.
(2) For the purposes of subclause (1), the HDTV quota period for a
commercial television broadcasting licence is the period:
(a) beginning:
(i) if the licence was in force immediately before 1 January
2007 and is not the licence with the service licence
number SL1150827—at the start of 1 January 2007; or
(ii) if the licence is in force immediately before 1 January
2008 and the service licence number of the licence is
SL1150827—at the start of 1 January 2008; or
(iii) in any other case—at the start of the first day after the
end of the 2-year period that begins when the licensee is
required to commence transmitting a commercial
television broadcasting service in the licence area
concerned; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Standards and HDTV quotas Part 4
HDTV quotas and standards Division 2
Clause 37E
Broadcasting Services Act 1992 79
(b) ending at the end of the simulcast period, or the
simulcast-equivalent period, for the licence area concerned.
Note: The licence referred to in subparagraph (a)(ii) was allocated to
Mildura Digital Television Pty Ltd for the Mildura/Sunraysia TV1
licence area.
(2A) For the purposes of subclause (1), the HDTV quota for a calendar
year, or a part of a calendar year, included in the HDTV quota
period is as follows:
(a) for a calendar year—1040 hours;
(b) for a part of a calendar year—1040 hours reduced on a
pro-rata basis.
Prime viewing hours quotas
(3) The regulations may determine standards that require commercial
television broadcasting licensees to meet specified quotas in
relation to the extent to which high-definition television programs,
or specified kinds of high-definition television programs, are
transmitted in HDTV digital mode in prime viewing hours on the
HDTV multi-channelled commercial television broadcasting
service provided by the licensee in the licence area.
Application
(4) Subclauses (1), (2) and (3) apply in relation to the transmission of a
HDTV multi-channelled commercial television broadcasting
service in a licence area that is not a remote licence area, if the
service is not transmitted using a transmitter operated under the
authority of a transmitter licence issued as mentioned in
subclause 8(8).
(5) Subclauses (1), (2) and (3) do not apply to a commercial television
broadcasting licence if an election under subclause 6(5A) or (5AA)
is in force for a commercial television broadcasting service
provided under the licence.
Note 1: For high-definition television program, see clause 37L.
Note 2: For prime viewing hours, see clause 37M.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4 Standards and HDTV quotas
Division 2 HDTV quotas and standards
Clause 37F
80 Broadcasting Services Act 1992
37F Non-remote areas—HDTV quotas for national broadcasters
(1) During the HDTV quota period for a national broadcaster, the
national broadcaster must transmit at least the HDTV quota of
high-definition television programs in HDTV digital mode on a
designated HDTV multi-channelled national television
broadcasting service provided by the broadcaster in the coverage
area.
(2) For the purposes of subclause (1), the HDTV quota period for a
national broadcaster is the period:
(a) beginning at the start of 1 January 2007; and
(b) ending after the end of the simulcast period, or the
simulcast-equivalent period, for the coverage area concerned.
(2A) For the purposes of subclause (1), the HDTV quota for a calendar
year, or a part of a calendar year, included in the HDTV quota
period is as follows:
(a) for a calendar year—1040 hours;
(b) for a part of a calendar year—1040 hours reduced on a
pro-rata basis.
Prime viewing hours quotas
(3) The regulations may determine standards that require national
broadcasters to meet specified quotas in relation to the extent to
which high-definition television programs, or specified kinds of
high-definition television programs, are transmitted in HDTV
digital mode in prime viewing hours on a designated HDTV
multi-channelled national television broadcasting service.
Application
(4) Subclauses (1), (2) and (3) apply in relation to the transmission of a
designated HDTV multi-channelled national television
broadcasting service in a coverage area that is not a remote
coverage area, if the service is not transmitted using a transmitter
operated under the authority of a transmitter licence issued as
mentioned in subclause 23(8).
Note 1: For high-definition television program, see clause 37L.
Note 2: For prime viewing hours, see clause 37M.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Standards and HDTV quotas Part 4
HDTV quotas and standards Division 2
Clause 37G
Broadcasting Services Act 1992 81
37G Remote areas—HDTV quotas for commercial television
broadcasting licensees
(1) The regulations may determine standards that require each
commercial television broadcasting licensee to meet specified
quotas in relation to the extent to which high-definition television
programs, or specified kinds of high-definition television
programs, are transmitted in HDTV digital mode on the HDTV
multi-channelled commercial television broadcasting service
provided by the licensee in the licence area.
Prime viewing hours quotas
(2) The regulations may determine standards that require commercial
television broadcasting licensees to meet specified quotas in
relation to the extent to which high-definition television programs,
or specified kinds of high-definition television programs, are
transmitted in HDTV digital mode in prime viewing hours on the
HDTV multi-channelled commercial television broadcasting
service provided by the licensee in the licence area.
Application
(3) Subclauses (1) and (2) apply in relation to the transmission of a
HDTV multi-channelled commercial television broadcasting
service in a remote licence area, if the service is not transmitted
using a transmitter operated under the authority of a transmitter
licence issued as mentioned in subclause 8(10A).
(4) Subclauses (1) and (2) do not apply to a licence if:
(a) the licensee provides an exempt remote area service under
the licence; and
(b) an election under subclause 6(7B) is in force for the service.
(5) If there is a simulcast period for the licence area of a commercial
television broadcasting licence, subclauses (1) and (2) cease to
apply to the licence at the end of that period.
(6) If there is a simulcast-equivalent period for the licence area of a
commercial television broadcasting licence, subclauses (1) and (2)
cease to apply to the licence at the end of that period.
Note 1: For high-definition television program, see clause 37L.
Note 2: For prime viewing hours, see clause 37M.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4 Standards and HDTV quotas
Division 2 HDTV quotas and standards
Clause 37H
82 Broadcasting Services Act 1992
37H Remote areas—HDTV quotas for national broadcasters
(1) The regulations may determine standards that require each national
broadcaster to meet specified quotas in relation to the extent to
which high-definition television programs, or specified kinds of
high-definition television programs, are transmitted in HDTV
digital mode on a designated HDTV multi-channelled national
television broadcasting service provided by the broadcaster in a
coverage area.
Prime viewing hours quotas
(2) The regulations may determine standards that require national
broadcasters to meet specified quotas in relation to the extent to
which high-definition television programs, or specified kinds of
high-definition television programs, are transmitted in HDTV
digital mode in prime viewing hours on a designated HDTV
multi-channelled national television broadcasting service.
Application
(3) Subclauses (1) and (2) apply in relation to the transmission of a
designated HDTV multi-channelled national television
broadcasting service in a remote coverage area, if the service is not
transmitted using a transmitter operated under the authority of a
transmitter licence issued as mentioned in subclause 23(10A).
(4) If there is a simulcast period for a coverage area, subclauses (1)
and (2) cease to apply to the coverage area at the end of that
period.
(5) If there is a simulcast-equivalent period for a coverage area,
subclauses (1) and (2) cease to apply to the coverage area at the
end of that period.
Note 1: For high-definition television program, see clause 37L.
Note 2: For prime viewing hours, see clause 37M.
37K Compliance by national broadcasters
A national broadcaster must comply with a standard under this
Division that is applicable to the broadcaster.
Note: For compliance by licensees, see clause 7 of Schedule 2.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Standards and HDTV quotas Part 4
HDTV quotas and standards Division 2
Clause 37L
Broadcasting Services Act 1992 83
37L High-definition television programs
(1) For the purposes of the application of this Division to a
commercial television broadcasting licensee, a high-definition
television program is:
(a) a television program, or incidental material, to the extent that
it was originally produced in a high-definition digital video
format; or
(b) a television program, or incidental material, to the extent
that:
(i) it was originally produced in a non-video format (for
example, 16 mm or 35 mm film) that was of equivalent
picture quality to a high-definition digital video format;
and
(ii) it has been converted to a high-definition digital video
format;
where the conversion has not resulted in a significant
reduction in picture quality; or
(c) incidental material not covered by paragraph (a) or (b) that is
transmitted during breaks in so much of a television program
as satisfies the requirements of paragraph (a) or (b).
(2) For the purposes of the application of this Division to a national
broadcaster, a high-definition television program is:
(a) a television program, or incidental material, to the extent that
it was originally produced in a high-definition digital video
format; or
(b) a television program, or incidental material, to the extent
that:
(i) it was originally produced in a non-video format (for
example, 16 mm or 35 mm film) that was of equivalent
picture quality to a high-definition digital video format;
and
(ii) it has been converted to a high-definition digital video
format;
where the conversion has not resulted in a significant
reduction in picture quality; or
(c) a television program, or incidental material, to the extent
that:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4 Standards and HDTV quotas
Division 2 HDTV quotas and standards
Clause 37L
84 Broadcasting Services Act 1992
(i) it was originally produced in a standard definition
digital video format; and
(ii) it has been converted to a high-definition digital video
format; or
(d) a television program, or incidental material, to the extent
that:
(i) it was originally produced in an analog video format;
and
(ii) it has been converted to a standard definition digital
video format;
where the converted program or material was subsequently
converted to a high-definition digital video format; or
(e) incidental material not covered by paragraph (a), (b), (c) or
(d) that is transmitted during breaks in so much of a
television program as satisfies the requirements of
paragraph (a), (b), (c) or (d).
(3) If material (the archival material) included in a television program
or in incidental material satisfies the following criteria:
(a) the archival material was originally produced:
(i) before 1 July 2003; or
(ii) if another day is determined in writing by the Minister
in relation to a class of television programs or incidental
material that includes the television program or
incidental material concerned—before that other day;
(b) the archival material would, apart from this subclause,
prevent the part of the television program or incidental
material which includes the archival material from satisfying
the requirements of paragraph (1)(a) or (b) or (2)(a), (b), (c)
or (d) (as the case may be);
(c) the archival material, taken together with any other material
to which paragraphs (a) and (b) apply and that is also
included in the same television program or incidental
material, amounts to an insubstantial proportion of the
television program or incidental material;
that part of the television program or incidental material is taken to
satisfy the requirements of paragraph (1)(a) or (b) or (2)(a), (b), (c)
or (d) (as the case may be).
(4) The following provisions apply to determinations of a day under
subparagraph (3)(a)(ii):
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Standards and HDTV quotas Part 4
HDTV quotas and standards Division 2
Clause 37M
Broadcasting Services Act 1992 85
(a) a day so determined may be a specified day, or a day that is
identified in some other way (for example, the day occurring
a specified period before first transmission);
(b) the Minister must not make a determination that would result
in a day so determined being earlier than 1 July 2003.
(5) A determination under subparagraph (3)(a)(ii) is a disallowable
instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
(6) In this clause:
incidental material means:
(a) advertising or sponsorship material (whether or not of a
commercial kind); or
(b) a promotion for a television program or a television
broadcasting service; or
(c) community information material or community promotional
material; or
(d) a news break or weather bulletin; or
(e) any other similar material.
television program does not include incidental material (whether
transmitted during or between television programs).
37M Prime viewing hours
For the purposes of this Division, prime viewing hours are the
hours:
(a) beginning at 6 pm each day or, if another time is prescribed,
beginning at that prescribed time each day; and
(b) ending at 10.30 pm on the same day or, if another time is
prescribed, ending at that prescribed time on the same day.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4 Standards and HDTV quotas
Division 5 Miscellaneous
Clause 41
86 Broadcasting Services Act 1992
Division 5—Miscellaneous
41 Standards may incorporate other instruments
Section 589 of the Telecommunications Act 1997 applies to
regulations made for the purposes of this Part in a corresponding
way to the way in which it applies to an instrument under that Act.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Restrictions on televising anti-siphoning events Part 4A
Commercial television broadcasting services Division 1
Clause 41A
Broadcasting Services Act 1992 87
Part 4A—Restrictions on televising anti-siphoning
events
Division 1—Commercial television broadcasting services
41A SDTV multi-channelled commercial television broadcasting
service—restrictions on televising anti-siphoning events
during the simulcast period if there is a core service etc.
Scope
(1) This clause applies to a commercial television broadcasting
licensee if:
(a) there is a simulcast period, or a simulcast-equivalent period,
for the licence area of the licence; and
(b) during that period, the licensee provides a core commercial
television broadcasting service in the licence area.
Televising the whole of an anti-siphoning event
(2) During that period, the licensee must not televise on a SDTV
multi-channelled commercial television broadcasting service in the
licence area the whole of an anti-siphoning event unless:
(a) the licensee has previously televised in the licence area the
whole of the event on the core commercial television
broadcasting service; or
(b) the licensee will televise simultaneously in the licence area
the whole of the event on both:
(i) the core commercial television broadcasting service;
and
(ii) the SDTV multi-channelled commercial television
broadcasting service.
Televising a part of an anti-siphoning event
(3) During that period, the licensee must not televise on a SDTV
multi-channelled commercial television broadcasting service in the
licence area a part of an anti-siphoning event unless:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4A Restrictions on televising anti-siphoning events
Division 1 Commercial television broadcasting services
Clause 41B
88 Broadcasting Services Act 1992
(a) the licensee has previously televised in the licence area the
part of the event on the core commercial television
broadcasting service; or
(b) the licensee will televise simultaneously in the licence area
the part of the event on both:
(i) the core commercial television broadcasting service;
and
(ii) the SDTV multi-channelled commercial television
broadcasting service; or
(c) the licensee televises the part of the event in a news or
current affairs program broadcast on the SDTV
multi-channelled commercial television broadcasting service.
Note: For anti-siphoning event, see subsection 6(1).
Licences allocated under section 38C
(4) This clause does not apply in relation to a licence allocated under
section 38c.
41B SDTV multi-channelled commercial television broadcasting
service—restrictions on televising anti-siphoning events
during the simulcast period if there is a primary service
etc.
Scope
(1) This clause applies to a commercial television broadcasting
licensee if:
(a) subsection 41B(2), (2C) or (2CB) applies to the licence; and
(b) there is a simulcast period, or a simulcast-equivalent period,
for the licence area of the licence; and
(c) during that period, the licensee provides:
(i) a SDTV multi-channelled commercial television
broadcasting service that is the licensee’s primary
commercial television broadcasting service; and
(ii) another SDTV multi-channelled commercial television
broadcasting service (the secondary commercial
television broadcasting service).
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Restrictions on televising anti-siphoning events Part 4A
Commercial television broadcasting services Division 1
Clause 41B
Broadcasting Services Act 1992 89
Televising the whole of an anti-siphoning event
(2) During that period, the licensee must not televise on the secondary
commercial television broadcasting service in the licence area the
whole of an anti-siphoning event unless:
(a) the licensee has previously televised in the licence area the
whole of the event on the licensee’s primary commercial
television broadcasting service; or
(b) the licensee will televise simultaneously in the licence area
the whole of the event on both:
(i) the licensee’s primary commercial television
broadcasting service; and
(ii) the secondary commercial television broadcasting
service.
Televising a part of an anti-siphoning event
(3) During that period, the licensee must not televise on the secondary
commercial television broadcasting service in the licence area a
part of an anti-siphoning event unless:
(a) the licensee has previously televised in the licence area the
part of the event on the licensee’s primary commercial
television broadcasting service; or
(b) the licensee will televise simultaneously in the licence area
the part of the event on both:
(i) the licensee’s primary commercial television
broadcasting service; and
(ii) the secondary commercial television broadcasting
service; or
(c) the licensee televises the part of the event in a news or
current affairs program broadcast on the secondary
commercial television broadcasting service.
Note 1: For primary commercial television broadcasting service, see
subclause 41G(1).
Note 2: For anti-siphoning event, see subsection 6(1).
Licences allocated under section 38C
(4) This clause does not apply in relation to a licence allocated under
section 38c.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4A Restrictions on televising anti-siphoning events
Division 1 Commercial television broadcasting services
Clause 41C
90 Broadcasting Services Act 1992
41C HDTV multi-channelled commercial television broadcasting
service—restrictions on televising anti-siphoning events
during the simulcast period if there is a core service etc.
Scope
(1) This clause applies to a commercial television broadcasting
licensee if:
(a) there is a simulcast period, or a simulcast-equivalent period,
for the licence area of the licence; and
(b) during that period, the licensee provides a core commercial
television broadcasting service in the licence area.
Televising the whole of an anti-siphoning event
(2) During that period, the licensee must not televise on a HDTV
multi-channelled commercial television broadcasting service in the
licence area the whole of an anti-siphoning event unless:
(a) the licensee has previously televised in the licence area the
whole of the event on the core commercial television
broadcasting service; or
(b) the licensee will televise simultaneously in the licence area
the whole of the event on both:
(i) the core commercial television broadcasting service;
and
(ii) the HDTV multi-channelled commercial television
broadcasting service.
Televising a part of an anti-siphoning event
(3) During that period, the licensee must not televise on a HDTV
multi-channelled commercial television broadcasting service in the
licence area a part of an anti-siphoning event unless:
(a) the licensee has previously televised in the licence area the
part of the event on the core commercial television
broadcasting service; or
(b) the licensee will televise simultaneously in the licence area
the part of the event on both:
(i) the core commercial television broadcasting service;
and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Restrictions on televising anti-siphoning events Part 4A
Commercial television broadcasting services Division 1
Clause 41D
Broadcasting Services Act 1992 91
(ii) the HDTV multi-channelled commercial television
broadcasting service; or
(c) the licensee televises the part of the event in a news or
current affairs program broadcast on the HDTV
multi-channelled commercial television broadcasting service.
Note: For anti-siphoning event, see subsection 6(1).
Licences allocated under section 38C
(4) This clause does not apply in relation to a licence allocated under
section 38c.
41D HDTV multi-channelled commercial television broadcasting
service—restrictions on televising anti-siphoning events
during the simulcast period if there is a primary service
etc.
Scope
(1) This clause applies to a commercial television broadcasting
licensee if:
(a) subsection 41B(2), (2C) or (2CB) applies to the licence; and
(b) there is a simulcast period, or a simulcast-equivalent period,
for the licence area of the licence; and
(c) during that period, the licensee provides a primary
commercial television broadcasting service in the licence
area.
Televising the whole of an anti-siphoning event
(2) During that period, the licensee must not televise on a HDTV
multi-channelled commercial television broadcasting service in the
licence area the whole of an anti-siphoning event unless:
(a) the licensee has previously televised in the licence area the
whole of the event on the licensee’s primary commercial
television broadcasting service; or
(b) the licensee will televise simultaneously in the licence area
the whole of the event on both:
(i) the licensee’s primary commercial television
broadcasting service; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4A Restrictions on televising anti-siphoning events
Division 1 Commercial television broadcasting services
Clause 41E
92 Broadcasting Services Act 1992
(ii) the HDTV multi-channelled commercial television
broadcasting service.
Televising a part of an anti-siphoning event
(3) During that period, the licensee must not televise on a HDTV
multi-channelled commercial television broadcasting service in the
licence area a part of an anti-siphoning event unless:
(a) the licensee has previously televised in the licence area the
part of the event on the licensee’s primary commercial
television broadcasting service; or
(b) the licensee will televise simultaneously in the licence area
the part of the event on both:
(i) the licensee’s primary commercial television
broadcasting service; and
(ii) the HDTV multi-channelled commercial television
broadcasting service; or
(c) the licensee televises the part of the event in a news or
current affairs program broadcast on the HDTV
multi-channelled commercial television broadcasting service.
Note 1: For primary commercial television broadcasting service, see
subclause 41G(1).
Note 2: For anti-siphoning event, see subsection 6(1).
Licences allocated under section 38C
(4) This clause does not apply in relation to a licence allocated under
section 38c.
41E SDTV multi-channelled commercial television broadcasting
service—restrictions on televising anti-siphoning events
after the end of the simulcast period etc.
Scope
(1) This clause applies to a commercial television broadcasting
licensee after the end of the simulcast period, or the
simulcast-equivalent period, for the licence area of the licence if
the licensee provides:
(a) a SDTV multi-channelled commercial television
broadcasting service that is the licensee’s primary
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Restrictions on televising anti-siphoning events Part 4A
Commercial television broadcasting services Division 1
Clause 41E
Broadcasting Services Act 1992 93
commercial television broadcasting service in the licence
area; and
(b) one or more other SDTV multi-channelled commercial
television broadcasting services (the secondary commercial
television broadcasting services) in the licence area.
Televising the whole of an anti-siphoning event
(2) The licensee must not televise on a secondary commercial
television broadcasting service in the licence area the whole of an
anti-siphoning event unless:
(a) the licensee has previously televised in the licence area the
whole of the event on the licensee’s primary commercial
television broadcasting service; or
(b) the licensee will televise simultaneously in the licence area
the whole of the event on both:
(i) the licensee’s primary commercial television
broadcasting service; and
(ii) the secondary commercial television broadcasting
service.
Televising a part of an anti-siphoning event
(3) The licensee must not televise on a secondary commercial
television broadcasting service in the licence area a part of an
anti-siphoning event unless:
(a) the licensee has previously televised in the licence area the
part of the event on the licensee’s primary commercial
television broadcasting service; or
(b) the licensee will televise simultaneously in the licence area
the part of the event on both:
(i) the licensee’s primary commercial television
broadcasting service; and
(ii) the secondary commercial television broadcasting
service; or
(c) the licensee televises the part of the event in a news or
current affairs program broadcast on the secondary
commercial television broadcasting service.
Note 1: For primary commercial television broadcasting service, see
subclause 41G(2).
Note 2: For anti-siphoning event, see subsection 6(1).
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4A Restrictions on televising anti-siphoning events
Division 1 Commercial television broadcasting services
Clause 41F
94 Broadcasting Services Act 1992
Licences allocated under section 38C
(4) This clause does not apply in relation to a licence allocated under
section 38c.
41F HDTV multi-channelled commercial television broadcasting
service—restrictions on televising anti-siphoning events
after the end of the simulcast period etc.
Scope
(1) This clause applies to a commercial television broadcasting
licensee after the end of the simulcast period, or the
simulcast-equivalent period, for the licence area of the licence.
Televising the whole of an anti-siphoning event
(2) The licensee must not televise on a HDTV multi-channelled
commercial television broadcasting service in the licence area the
whole of an anti-siphoning event unless:
(a) the licensee has previously televised in the licence area the
whole of the event on the licensee’s primary commercial
television broadcasting service; or
(b) the licensee will televise simultaneously in the licence area
the whole of the event on both:
(i) the licensee’s primary commercial television
broadcasting service; and
(ii) the HDTV multi-channelled commercial television
broadcasting service.
Televising a part of an anti-siphoning event
(3) The licensee must not televise on a HDTV multi-channelled
commercial television broadcasting service in the licence area a
part of an anti-siphoning event unless:
(a) the licensee has previously televised in the licence area the
part of the event on the licensee’s primary commercial
television broadcasting service; or
(b) the licensee will televise simultaneously in the licence area
the part of the event on both:
(i) the licensee’s primary commercial television
broadcasting service; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Restrictions on televising anti-siphoning events Part 4A
Commercial television broadcasting services Division 1
Clause 41FA
Broadcasting Services Act 1992 95
(ii) the HDTV multi-channelled commercial television
broadcasting service; or
(c) the licensee televises the part of the event in a news or
current affairs program broadcast on the HDTV
multi-channelled commercial television broadcasting service.
Note 1: For primary commercial television broadcasting service, see
subclause 41G(2).
Note 2: For anti-siphoning event, see subsection 6(1).
Licences allocated under section 38C
(4) This clause does not apply in relation to a licence allocated under
section 38c.
41FA SDTV multi-channelled commercial television broadcasting
service provided under a section 38C licence—restrictions
on televising anti-siphoning events
Scope
(1) This clause applies to a commercial television broadcasting
licensee if:
(a) the licence was allocated under section 38C; and
(b) the licensee provides:
(i) a SDTV multi-channelled commercial television
broadcasting service that is one of the licensee’s
primary commercial television broadcasting services in
the licence area; and
(ii) one or more SDTV multi-channelled commercial
television broadcasting services that are not the
licensee’s primary commercial television broadcasting
services (the secondary commercial television
broadcasting services) in the licence area.
Televising the whole of an anti-siphoning event
(2) The licensee must not televise on a secondary commercial
television broadcasting service in the licence area the whole of an
anti-siphoning event unless:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4A Restrictions on televising anti-siphoning events
Division 1 Commercial television broadcasting services
Clause 41FB
96 Broadcasting Services Act 1992
(a) the licensee has previously televised in the licence area the
whole of the event on one or more of the licensee’s primary
commercial television broadcasting services; or
(b) the licensee will televise simultaneously in the licence area
the whole of the event on:
(i) one or more of the licensee’s primary commercial
television broadcasting services; and
(ii) the secondary commercial television broadcasting
service.
Televising a part of an anti-siphoning event
(3) The licensee must not televise on a secondary commercial
television broadcasting service in the licence area a part of an
anti-siphoning event unless:
(a) the licensee has previously televised in the licence area the
part of the event on one or more of the licensee’s primary
commercial television broadcasting services; or
(b) the licensee will televise simultaneously in the licence area
the part of the event on:
(i) one or more of the licensee’s primary commercial
television broadcasting service; and
(ii) the secondary commercial television broadcasting
service; or
(c) the licensee televises the part of the event in a news or
current affairs program broadcast on the secondary
commercial television broadcasting service.
Note 1: For primary commercial television broadcasting service, see
subclause 41G(3).
Note 2: For anti-siphoning event, see subsection 6(1).
41FB HDTV multi-channelled commercial television broadcasting
service provided under a section 38C licence—restrictions
on televising anti-siphoning events
Scope
(1) This clause applies to a commercial television broadcasting
licensee if the licence was allocated under section 38c.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Restrictions on televising anti-siphoning events Part 4A
Commercial television broadcasting services Division 1
Clause 41FB
Broadcasting Services Act 1992 97
Televising the whole of an anti-siphoning event
(2) The licensee must not televise on a HDTV multi-channelled
commercial television broadcasting service in the licence area the
whole of an anti-siphoning event unless:
(a) the licensee has previously televised in the licence area the
whole of the event on one or more of the licensee’s primary
commercial television broadcasting services; or
(b) the licensee will televise simultaneously in the licence area
the whole of the event on:
(i) one or more of the licensee’s primary commercial
television broadcasting services; and
(ii) the HDTV multi-channelled commercial television
broadcasting service.
Televising a part of an anti-siphoning event
(3) The licensee must not televise on a HDTV multi-channelled
commercial television broadcasting service in the licence area a
part of an anti-siphoning event unless:
(a) the licensee has previously televised in the licence area the
part of the event on one or more of the licensee’s primary
commercial television broadcasting services; or
(b) the licensee will televise simultaneously in the licence area
the part of the event on:
(i) one or more of the licensee’s primary commercial
television broadcasting services; and
(ii) the HDTV multi-channelled commercial television
broadcasting service; or
(c) the licensee televises the part of the event in a news or
current affairs program broadcast on the HDTV
multi-channelled commercial television broadcasting service.
Note 1: For primary commercial television broadcasting service, see
subclause 41G(3).
Note 2: For anti-siphoning event, see subsection 6(1).
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4A Restrictions on televising anti-siphoning events
Division 1 Commercial television broadcasting services
Clause 41G
98 Broadcasting Services Act 1992
41G Primary commercial television broadcasting service
Service provided during the simulcast period etc.
(1) If subsection 41B(2), (2C), (2CB), (2D) or (2DB) applies to a
commercial television broadcasting licence, the ACMA may, by
legislative instrument, declare that a specified SDTV
multi-channelled commercial television broadcasting service
provided by the licensee during the simulcast period, or the
simulcast-equivalent period, for the licence area of the licence is
the licensee’s primary commercial television broadcasting service
in the licence area.
(1A) The ACMA must ensure that a declaration under subclause (1):
(a) comes into force as soon as practicable after the later of the
following:
(i) when the licensee commences to provide a SDTV
multi-channelled commercial television broadcasting
service in the licence area;
(ii) the commencement of this subclause; and
(b) is in force at all times during the period:
(i) beginning at the time worked out under paragraph (a);
and
(ii) ending at the end of the simulcast period, or
simulcast-equivalent period, for the licence area.
Service provided after the end of the simulcast period etc.
(2) The ACMA may, by legislative instrument, declare that a specified
SDTV multi-channelled commercial television broadcasting
service provided by a commercial television broadcasting licensee
after the end of the simulcast period, or the simulcast-equivalent
period, for the licence area of the licence is the licensee’s primary
commercial television broadcasting service in the licence area.
(3) The ACMA must ensure that a declaration under subclause (2) is in
force at all times after the later of the following:
(a) the end of the simulcast-period, or simulcast equivalent
period, for the licence area;
(b) when the licensee commences to provide a SDTV
multi-channelled commercial television broadcasting service
in the licence area.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Restrictions on televising anti-siphoning events Part 4A
Commercial television broadcasting services Division 1
Clause 41G
Broadcasting Services Act 1992 99
Service provided under a section 38C licence
(4) The ACMA may, by legislative instrument, declare that one or
more specified SDTV multi-channelled commercial television
broadcasting services provided by a commercial television
broadcasting licensee whose licence was allocated under
section 38C are the licensee’s primary commercial television
broadcasting services in the licence area.
(5) The number of services declared under subclause (4) in relation to
a particular licensee must not exceed 3.
(6) The ACMA must ensure that a declaration under subclause (4) is in
force at all times on and after the start date for the licence area
concerned.
Definition
(7) In this clause:
start date has the same meaning as in clause 7H of Schedule 2.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4A Restrictions on televising anti-siphoning events
Division 2 National television broadcasting services
Clause 41H
100 Broadcasting Services Act 1992
Division 2—National television broadcasting services
41H SDTV multi-channelled national television broadcasting
service—restrictions on televising anti-siphoning events
during the simulcast period etc.
Scope
(1) This clause applies to a national broadcaster if there is a simulcast
period, or a simulcast-equivalent period, for a coverage area.
Televising the whole of an anti-siphoning event
(2) During that period, the national broadcaster must not televise on a
SDTV multi-channelled national television broadcasting service in
the coverage area the whole of an anti-siphoning event unless:
(a) the national broadcaster has previously televised in the
coverage area the whole of the event on the national
television broadcasting service to which clause 19 applies; or
(b) the national broadcaster will televise simultaneously in the
coverage area the whole of the event on both:
(i) the national television broadcasting service to which
clause 19 applies; and
(ii) the SDTV multi-channelled national television
broadcasting service.
Televising a part of an anti-siphoning event
(3) During that period, the national broadcaster must not televise on a
SDTV multi-channelled national television broadcasting service in
the coverage area a part of an anti-siphoning event unless:
(a) the national broadcaster has previously televised in the
coverage area the part of the event on the national television
broadcasting service to which clause 19 applies; or
(b) the national broadcaster will televise simultaneously in the
coverage area the part of the event on both:
(i) the national television broadcasting service to which
clause 19 applies; and
(ii) the SDTV multi-channelled national television
broadcasting service; or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Restrictions on televising anti-siphoning events Part 4A
National television broadcasting services Division 2
Clause 41J
Broadcasting Services Act 1992 101
(c) the national broadcaster televises the part of the event in a
news or current affairs program broadcast on the SDTV
multi-channelled national television broadcasting service.
Note: For anti-siphoning event, see subsection 6(1).
National television broadcasting services provided with the use of
a satellite
(4) This clause does not apply in relation to national television
broadcasting services provided with the use of a satellite.
41J HDTV multi-channelled national television broadcasting
service—restrictions on televising anti-siphoning events
during the simulcast period etc.
Scope
(1) This clause applies to a national broadcaster if there is a simulcast
period, or a simulcast-equivalent period, for a coverage area.
Televising the whole of an anti-siphoning event
(2) During that period, the national broadcaster must not televise on a
HDTV multi-channelled national television broadcasting service in
the coverage area the whole of an anti-siphoning event unless:
(a) the national broadcaster has previously televised in the
coverage area the whole of the event on the national
television broadcasting service to which clause 19 applies; or
(b) the national broadcaster will televise simultaneously in the
coverage area the whole of the event on both:
(i) the national television broadcasting service to which
clause 19 applies; and
(ii) the HDTV multi-channelled national television
broadcasting service.
Televising a part of an anti-siphoning event
(3) During that period, the national broadcaster must not televise on a
HDTV multi-channelled national television broadcasting service in
the coverage area a part of an anti-siphoning event unless:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4A Restrictions on televising anti-siphoning events
Division 2 National television broadcasting services
Clause 41K
102 Broadcasting Services Act 1992
(a) the national broadcaster has previously televised in the
coverage area the part of the event on the national television
broadcasting service to which clause 19 applies; or
(b) the national broadcaster will televise simultaneously in the
coverage area the part of the event on both:
(i) the national television broadcasting service to which
clause 19 applies; and
(ii) the HDTV multi-channelled national television
broadcasting service; or
(c) the national broadcaster televises the part of the event in a
news or current affairs program broadcast on the HDTV
multi-channelled national television broadcasting service.
Note: For anti-siphoning event, see subsection 6(1).
National television broadcasting services provided with the use of
a satellite
(4) This clause does not apply in relation to national television
broadcasting services provided with the use of a satellite.
41K SDTV multi-channelled national television broadcasting
service—restrictions on televising anti-siphoning events
after the end of the simulcast period etc.
Scope
(1) This clause applies to a national broadcaster after the end of the
simulcast period, or the simulcast-equivalent period, for a coverage
area if the national broadcaster provides:
(a) a SDTV multi-channelled national television broadcasting
service that is the broadcaster’s primary national television
broadcasting service in the coverage area; and
(b) one or more other SDTV multi-channelled national television
broadcasting services (the secondary national television
broadcasting services) in the coverage area.
Televising the whole of an anti-siphoning event
(2) The national broadcaster must not televise on a secondary national
television broadcasting service in the coverage area the whole of an
anti-siphoning event unless:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Restrictions on televising anti-siphoning events Part 4A
National television broadcasting services Division 2
Clause 41K
Broadcasting Services Act 1992 103
(a) the national broadcaster has previously televised in the
coverage area the whole of the event on the broadcaster’s
primary national television broadcasting service; or
(b) the national broadcaster will televise simultaneously in the
coverage area the whole of the event on both:
(i) the broadcaster’s primary national television
broadcasting service; and
(ii) the secondary national television broadcasting service.
Televising a part of an anti-siphoning event
(3) The national broadcaster must not televise on a secondary national
television broadcasting service in the coverage area a part of an
anti-siphoning event unless:
(a) the national broadcaster has previously televised in the
coverage area the part of the event on the broadcaster’s
primary national television broadcasting service; or
(b) the national broadcaster will televise simultaneously in the
coverage area the part of the event on both:
(i) the broadcaster’s primary national television
broadcasting service; and
(ii) the secondary national television broadcasting service;
or
(c) the national broadcaster televises the part of the event in a
news or current affairs program broadcast on the secondary
national television broadcasting service.
Note 1: For primary national television broadcasting service, see clause 41M.
Note 2: For anti-siphoning event, see subsection 6(1).
National television broadcasting services provided with the use of
a satellite
(4) This clause does not apply in relation to national television
broadcasting services provided with the use of a satellite.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4A Restrictions on televising anti-siphoning events
Division 2 National television broadcasting services
Clause 41L
104 Broadcasting Services Act 1992
41L HDTV multi-channelled national television broadcasting
service—restrictions on televising anti-siphoning events
after the end of the simulcast period etc.
Scope
(1) This clause applies to a national broadcaster after the end of the
simulcast period, or the simulcast-equivalent period, for a coverage
area.
Televising the whole of an anti-siphoning event
(2) The national broadcaster must not televise on a HDTV
multi-channelled national television broadcasting service in the
coverage area the whole of an anti-siphoning event unless:
(a) the national broadcaster has previously televised in the
coverage area the whole of the event on the broadcaster’s
primary national television broadcasting service; or
(b) the national broadcaster will televise simultaneously in the
coverage area the whole of the event on both:
(i) the broadcaster’s primary national television
broadcasting service; and
(ii) the HDTV multi-channelled national television
broadcasting service.
Televising a part of an anti-siphoning event
(3) The national broadcaster must not televise on a HDTV
multi-channelled national television broadcasting service in the
coverage area a part of an anti-siphoning event unless:
(a) the national broadcaster has previously televised in the
coverage area the part of the event on the broadcaster’s
primary national television broadcasting service; or
(b) the national broadcaster will televise simultaneously in the
coverage area the part of the event on both:
(i) the broadcaster’s primary national television
broadcasting service; and
(ii) the HDTV multi-channelled national television
broadcasting service; or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Restrictions on televising anti-siphoning events Part 4A
National television broadcasting services Division 2
Clause 41LA
Broadcasting Services Act 1992 105
(c) the national broadcaster televises the part of the event in a
news or current affairs program broadcast on the HDTV
multi-channelled national television broadcasting service.
Note 1: For primary national television broadcasting service, see clause 41M.
Note 2: For anti-siphoning event, see subsection 6(1).
National television broadcasting services provided with the use of
a satellite
(4) This clause does not apply in relation to national television
broadcasting services provided with the use of a satellite.
41LA SDTV multi-channelled national television broadcasting
service provided with the use of a satellite—restrictions
on televising anti-siphoning events
Scope
(1) This clause applies to a national broadcaster if the national
broadcaster provides, with the use of a satellite:
(a) a SDTV multi-channelled national television broadcasting
service that is the broadcaster’s primary satellite national
television broadcasting service in a satellite delivery area;
and
(b) one or more other SDTV multi-channelled national television
broadcasting services (the secondary national television
broadcasting services) in the satellite delivery area.
Televising the whole of an anti-siphoning event
(2) The national broadcaster must not televise on a secondary national
television broadcasting service in the satellite delivery area the
whole of an anti-siphoning event unless:
(a) the national broadcaster has previously televised in the
satellite delivery area the whole of the event on the
broadcaster’s primary satellite national television
broadcasting service; or
(b) the national broadcaster will televise simultaneously in the
satellite delivery area the whole of the event on both:
(i) the broadcaster’s primary satellite national television
broadcasting service; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4A Restrictions on televising anti-siphoning events
Division 2 National television broadcasting services
Clause 41LB
106 Broadcasting Services Act 1992
(ii) the secondary national television broadcasting service.
Televising a part of an anti-siphoning event
(3) The national broadcaster must not televise on a secondary national
television broadcasting service in the satellite delivery area a part
of an anti-siphoning event unless:
(a) the national broadcaster has previously televised in the
satellite delivery area the part of the event on the
broadcaster’s primary satellite national television
broadcasting service; or
(b) the national broadcaster will televise simultaneously in the
satellite delivery area the part of the event on both:
(i) the broadcaster’s primary satellite national television
broadcasting service; and
(ii) the secondary national television broadcasting service;
or
(c) the national broadcaster televises the part of the event in a
news or current affairs program broadcast on the secondary
national television broadcasting service.
Note 1: For primary satellite national television broadcasting service, see
clause 41N.
Note 2: For anti-siphoning event, see subsection 6(1).
41LB HDTV multi-channelled national television broadcasting
service provided with the use of a satellite—restrictions
on televising anti-siphoning events
Scope
(1) This clause applies to a national broadcaster if the national
broadcaster provides, with the use of a satellite, a HDTV
multi-channelled national television broadcasting service.
Televising the whole of an anti-siphoning event
(2) The national broadcaster must not televise on the HDTV
multi-channelled national television broadcasting service in a
satellite delivery area the whole of an anti-siphoning event unless:
(a) the national broadcaster has previously televised in the
satellite delivery area the whole of the event on the
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Restrictions on televising anti-siphoning events Part 4A
National television broadcasting services Division 2
Clause 41M
Broadcasting Services Act 1992 107
broadcaster’s primary satellite national television
broadcasting service; or
(b) the national broadcaster will televise simultaneously in the
satellite delivery area the whole of the event on both:
(i) the broadcaster’s primary satellite national television
broadcasting service; and
(ii) the HDTV multi-channelled national television
broadcasting service.
Televising a part of an anti-siphoning event
(3) The national broadcaster must not televise on the HDTV
multi-channelled national television broadcasting service in a
satellite delivery area a part of an anti-siphoning event unless:
(a) the national broadcaster has previously televised in the
satellite delivery area the part of the event on the
broadcaster’s primary satellite national television
broadcasting service; or
(b) the national broadcaster will televise simultaneously in the
satellite delivery area the part of the event on both:
(i) the broadcaster’s primary satellite national television
broadcasting service; and
(ii) the HDTV multi-channelled national television
broadcasting service; or
(c) the national broadcaster televises the part of the event in a
news or current affairs program broadcast on the HDTV
multi-channelled national television broadcasting service.
Note 1: For primary satellite national television broadcasting service, see
clause 41N.
Note 2: For anti-siphoning event, see subsection 6(1).
41M Primary national television broadcasting service
(1) A national broadcaster must, by written notice given to the
Minister, declare that a specified SDTV multi-channelled national
television broadcasting service provided by the national
broadcaster after the end of the simulcast period, or the
simulcast-equivalent period, for a coverage area is the
broadcaster’s primary national television broadcasting service in
the coverage area.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 4A Restrictions on televising anti-siphoning events
Division 2 National television broadcasting services
Clause 41N
108 Broadcasting Services Act 1992
(2) The national broadcaster must ensure that a declaration under
subclause (1) is in force at all times after the end of the simulcast
period, or the simulcast-equivalent period, for the coverage area
concerned.
41N Primary satellite national television broadcasting service
Primary national television broadcasting service
(1) A national broadcaster must, by written notice given to the
Minister, declare that a specified SDTV multi-channelled national
television broadcasting service provided by the national
broadcaster, with the use of a satellite, in a specified satellite
delivery area is the broadcaster’s primary satellite national
television broadcasting service in the satellite delivery area.
(2) The national broadcaster must ensure that a declaration under
subclause (1):
(a) comes into force as soon as practicable after the national
broadcaster commences to provide a SDTV multi-channelled
national television broadcasting service, with the use of a
satellite, in the satellite delivery area; and
(b) is in force at all times after that commencement.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Transmitter access regime Part 5
Clause 42
Broadcasting Services Act 1992 109
Part 5—Transmitter access regime
42 Simplified outline
The following is a simplified outline of this Part:
• The owner or operator of a broadcasting transmission tower or
a designated associated facility must provide:
(a) the holder of a commercial television broadcasting
licence; or
(b) a national broadcaster;
with access to the tower or facility.
• The owner or operator of a broadcasting transmission tower or
a designated associated facility must provide a datacaster with
access to the tower or facility.
• The owner or operator of a broadcasting transmission tower
must provide:
(a) the holder of a commercial television broadcasting
licence; or
(b) a national broadcaster;
with access to the site of the tower.
• The owner or operator of a broadcasting transmission tower
must provide a datacaster with access to the site of the tower.
43 Definitions
In this Part:
ACCC means the Australian Competition and Consumer
Commission.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 5 Transmitter access regime
Clause 43A
110 Broadcasting Services Act 1992
commercial television broadcasting licence does not include a
commercial television broadcasting licence allocated under
section 38c.
datacaster means a person who holds a datacasting transmitter
licence.
datacasting transmitter licence does not include an authorisation
under section 114 of the Radiocommunications Act 1992.
designated associated facility has the meaning given by
clause 43A.
facility includes apparatus, equipment, a structure, a line or an
electricity cable or wire.
site means:
(a) land; or
(b) a building on land; or
(c) a structure on land.
43A Designated associated facilities
For the purposes of this Part, a designated associated facility
means any of the following facilities:
(a) an antenna;
(b) a combiner;
(c) a feeder system;
(d) a facility of a kind specified in the regulations;
where:
(e) the facility is, or is to be, associated with a transmitter; and
(f) the facility is used, or capable of being used, in connection
with:
(i) the transmission of a television broadcasting service in
digital mode; or
(ii) the provision of datacasting services in digital mode.
44 Extended meaning of access
(1) For the purposes of this Part, giving access to a tower includes
replacing the tower with another tower located on the same site and
giving access to the replacement tower.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Transmitter access regime Part 5
Clause 45
Broadcasting Services Act 1992 111
(2) For the purposes of this Part, giving access to a site on which is
situated a tower includes replacing the tower with another tower
located on the site.
(3) For the purposes of this Part, giving access to a designated
associated facility includes:
(a) replacing the facility with another facility located on the
same site and giving access to the replacement facility; or
(b) giving access to a service provided by means of the
designated associated facility.
45 Access to broadcasting transmission towers
Television broadcasting services in digital mode
(1) The owner or operator of a broadcasting transmission tower must,
if requested to do so by the holder of a commercial television
broadcasting licence (the access seeker), or a national broadcaster
(also the access seeker), give the access seeker access to the tower.
(2) The owner or operator of the broadcasting transmission tower is
not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the
access seeker to install or maintain a transmitter and/or
associated facilities used, or for use, wholly or principally in
connection with the transmission of the access seeker’s
television broadcasting service or services in digital mode;
and
(b) the access seeker gives the owner or operator reasonable
notice that the access seeker requires the access.
Datacasting services in digital mode
(3) The owner or operator of a broadcasting transmission tower must,
if requested to do so by a datacaster (the access seeker), give the
access seeker access to the tower.
(4) The owner or operator of the broadcasting transmission tower is
not required to comply with subclause (3) unless:
(a) the access is provided for the sole purpose of enabling the
access seeker to install or maintain a transmitter and/or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 5 Transmitter access regime
Clause 45A
112 Broadcasting Services Act 1992
associated facilities used, or for use, in connection with the
provision of datacasting services in digital mode; and
(b) the access seeker gives the owner or operator reasonable
notice that the access seeker requires the access.
Compliance not technically feasible
(5) The owner or operator of a broadcasting transmission tower is not
required to comply with subclause (1) or (3) if there is in force a
written certificate issued by the ACMA stating that, in the
ACMA’s opinion, compliance with subclause (1) or (3), as the case
may be, in relation to that tower is not technically feasible.
(6) In determining whether compliance with subclause (1) or (3) in
relation to a tower is technically feasible, the ACMA must have
regard to:
(a) whether compliance is likely to result in significant
difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat
to the health or safety of persons who operate, or work on,
the tower; and
(c) if compliance is likely to have a result referred to in
paragraph (a) or (b)—whether there are practicable means of
avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a
facility situated on the tower; and
(ii) making alterations to the tower; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(7) If the ACMA receives a request to make a decision about the issue
of a certificate under subclause (5), the ACMA must use its best
endeavours to make that decision within 10 business days after the
request was made.
45A Access to designated associated facilities
(1) This clause applies to a designated associated facility if the facility
is situated on, at, in or under:
(a) a broadcasting transmission tower; or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Transmitter access regime Part 5
Clause 45A
Broadcasting Services Act 1992 113
(b) the site on which a broadcasting transmission tower is
situated.
Television broadcasting services in digital mode
(2) The owner or operator of the designated associated facility must, if
requested to do so by the holder of a commercial television
broadcasting licence (the access seeker), or a national broadcaster
(also called the access seeker), give the access seeker access to the
facility.
(3) The owner or operator of the designated associated facility is not
required to comply with subclause (2) unless:
(a) the access is provided for the sole purpose of enabling the
access seeker to use the facility, or a service provided by
means of the facility, wholly or principally in connection
with the transmission of the access seeker’s television
broadcasting service or services in digital mode; and
(b) the access seeker gives the owner or operator reasonable
notice that the access seeker requires the access.
Datacasting services in digital mode
(4) The owner or operator of the designated associated facility must, if
requested to do so by a datacaster (the access seeker), give the
access seeker access to the facility.
(5) The owner or operator of the designated associated facility is not
required to comply with subclause (4) unless:
(a) the access is provided for the sole purpose of enabling the
access seeker to use the facility, or a service provided by
means of the facility, wholly or principally in connection
with the provision of datacasting services in digital mode;
and
(b) the access seeker gives the owner or operator reasonable
notice that the access seeker requires the access.
Compliance not technically feasible
(6) The owner or operator of a designated associated facility is not
required to comply with subclause (2) or (4) if there is in force a
written certificate issued by the ACMA stating that, in the
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 5 Transmitter access regime
Clause 46
114 Broadcasting Services Act 1992
ACMA’s opinion, compliance with subclause (2) or (4), as the case
may be, in relation to that facility is not technically feasible.
(7) In determining whether compliance with subclause (2) or (4) in
relation to a facility is technically feasible, the ACMA must have
regard to:
(a) whether compliance is likely to result in significant
difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat
to the health or safety of persons who operate, or work on, a
facility situated on the site; and
(c) if compliance is likely to have a result referred to in
paragraph (a) or (b)—whether there are practicable means of
avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a
facility situated on the site; and
(ii) making alterations to a facility situated on the site; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(8) If the ACMA receives a request to make a decision about the issue
of a certificate under subclause (6), the ACMA must use its best
endeavours to make that decision within 10 business days after the
request was made.
Exemptions
(9) The regulations may provide for exemptions from subclauses (2)
and (4).
(10) Regulations made for the purposes of subclause (9) may make
provision with respect to a matter by conferring on the ACCC a
power to make a decision of an administrative character.
46 Access to sites of broadcasting transmission towers
Television broadcasting services in digital mode
(1) The owner or operator of a broadcasting transmission tower must,
if requested to do so by the holder of a commercial television
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Transmitter access regime Part 5
Clause 46
Broadcasting Services Act 1992 115
broadcasting licence (the access seeker), or a national broadcaster
(also the access seeker), give the access seeker access to a site if:
(a) the tower is situated on the site; and
(b) either:
(i) the site is owned, occupied or controlled by the owner
or operator of the tower; or
(ii) the owner or operator of the tower has a right (either
conditional or unconditional) to use the site.
(2) The owner or operator of the broadcasting transmission tower is
not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the
access seeker to install or maintain a transmitter and/or
associated facilities used, or for use, wholly or principally in
connection with the transmission of the access seeker’s
television broadcasting service or services in digital mode;
and
(b) the access seeker gives the owner or operator reasonable
notice that the access seeker requires the access.
Datacasting services in digital mode
(3) The owner or operator of a broadcasting transmission tower must,
if requested to do so by a datacaster (the access seeker), give the
access seeker access to a site if the tower is situated on the site.
(4) The owner or operator of the broadcasting transmission tower is
not required to comply with subclause (3) unless:
(a) the access is provided for the sole purpose of enabling the
access seeker to install or maintain a transmitter and/or
associated facilities used, or for use, in connection with the
provision of datacasting services in digital mode; and
(b) the access seeker gives the owner or operator reasonable
notice that the access seeker requires the access.
Compliance not technically feasible
(5) The owner or operator of a broadcasting transmission tower is not
required to comply with subclause (1) or (3) if there is in force a
written certificate issued by the ACMA stating that, in the
ACMA’s opinion, compliance with subclause (1) or (3), as the case
may be, in relation to that tower is not technically feasible.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 5 Transmitter access regime
Clause 47
116 Broadcasting Services Act 1992
(6) In determining whether compliance with subclause (1) or (3) in
relation to a site is technically feasible, the ACMA must have
regard to:
(a) whether compliance is likely to result in significant
difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat
to the health or safety of persons who operate, or work on, a
facility situated on the site; and
(c) if compliance is likely to have a result referred to in
paragraph (a) or (b)—whether there are practicable means of
avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a
facility situated on the site; and
(ii) making alterations to a facility situated on the site; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(7) If the ACMA receives a request to make a decision about the issue
of a certificate under subclause (5), the ACMA must use its best
endeavours to make that decision within 10 business days after the
request was made.
47 Terms and conditions of access
Access to towers
(1) The owner or operator of a broadcasting transmission tower must
comply with subclause 45(1) or (3) on such terms and conditions
as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that
subclause); or
(b) failing agreement, determined by an arbitrator appointed by
the parties.
If the parties fail to agree on the appointment of an arbitrator, the
ACCC is to be the arbitrator.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Transmitter access regime Part 5
Clause 47
Broadcasting Services Act 1992 117
Access to designated associated facilities
(1A) The owner or operator of a designated associated facility must
comply with subclause 45A(2) or (4) on such terms and conditions
as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that
subclause); or
(b) failing agreement, determined by an arbitrator appointed by
the parties.
If the parties fail to agree on the appointment of an arbitrator, the
ACCC is to be the arbitrator.
Access to sites
(2) The owner or operator of a broadcasting transmission tower must
comply with subclause 46(1) or (3) on such terms and conditions
as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that
subclause); or
(b) failing agreement, determined by an arbitrator appointed by
the parties.
If the parties fail to agree on the appointment of an arbitrator, the
ACCC is to be the arbitrator.
Conduct of arbitration
(3) The regulations may make provision for and in relation to the
conduct of an arbitration under this clause.
(4) The regulations may provide that, for the purposes of a particular
arbitration conducted by the ACCC under this clause, the ACCC
may be constituted by a single member, or a specified number of
members, of the ACCc. For each such arbitration, that member or
those members are to be nominated in writing by the Chair of the
ACCc.
(5) Subclause (4) does not, by implication, limit subclause (3).
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 5 Transmitter access regime
Clause 48
118 Broadcasting Services Act 1992
48 Code relating to access
(1) The ACCC may, by written instrument, make a Code setting out
conditions that are to be complied with in relation to the provision
of access under this Part.
(2) Before making an instrument under subclause (1), the ACCC must
consult:
(a) commercial television broadcasting licensees; and
(b) national broadcasters; and
(c) owners and operators of broadcasting transmission towers.
(3) An access seeker must comply with the Code.
(4) The owner or operator of a broadcasting transmission tower must
comply with the Code, to the extent to which the Code relates to
the provision of access under clause 45 or 46.
(4A) The owner or operator of a designated associated facility must
comply with the Code, to the extent to which the Code relates to
the provision of access under clause 45A.
(5) An instrument under subclause (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act 1901.
49 Arbitration—acquisition of property
(1) This clause applies to a provision of this Part that authorises the
conduct of an arbitration (whether by the ACCC or another
person).
(2) The provision has no effect to the extent (if any) to which it
purports to authorise the acquisition of property if that acquisition:
(a) is otherwise than on just terms; and
(b) would be invalid because of paragraph 51(xxxi) of the
Constitution.
(3) In this clause:
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.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Transmitter access regime Part 5
Clause 50
Broadcasting Services Act 1992 119
50 Relationship between this Part and the National Transmission
Network Sale Act 1998
Part 3 of the National Transmission Network Sale Act 1998 does
not apply in relation to an access seeker seeking access to a
broadcasting transmission tower or a site to the extent to which this
Part applies in relation to the access seeker seeking access to that
tower or site.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 6 Collection of datacasting charge
Clause 51
120 Broadcasting Services Act 1992
Part 6—Collection of datacasting charge
51 Collection of datacasting charge
Definitions
(1) In this clause:
charge means charge imposed by the Datacasting Charge
(Imposition) Act 1998.
late payment penalty means an amount that is payable by way of
penalty in accordance with a determination under subclause (3).
When charge due and payable
(2) Charge is due and payable at the time ascertained in accordance
with a written determination made by the ACMA.
Late payment penalty
(3) The ACMA may, by written instrument, determine that, if any
charge payable by a person remains unpaid after the time when it
became due for payment, the person is liable to pay to the
Commonwealth, by way of penalty, an amount calculated at the
rate of:
(a) 20% per annum; or
(b) if the determination specifies a lower percentage—that lower
percentage per annum;
on the amount unpaid, computed from that time.
Determination has effect
(4) A determination under subclause (3) has effect accordingly.
Remission of penalty
(5) A determination under subclause (3) may authorise the ACMA to
make decisions about the remission of the whole or a part of an
amount of late payment penalty.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Collection of datacasting charge Part 6
Clause 52
Broadcasting Services Act 1992 121
Payment of charge and late payment penalty
(6) Charge and late payment penalty are payable to the ACMA on
behalf of the Commonwealth.
Recovery of charge and penalty
(7) Charge and late payment penalty may be recovered by the ACMA,
on behalf of the Commonwealth, as debts due to the
Commonwealth.
Payments to the Commonwealth
(8) Amounts received by way of charge or late payment penalty must
be paid to the Commonwealth.
Disallowable instrument
(9) A determination under subclause (2) or (3) is a disallowable
instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
52 Cancellation of certain exemptions from datacasting charge
(1) This clause cancels the effect of a provision of another Act that
would have the effect of exempting a person from liability to pay
charge imposed by the Datacasting Charge (Imposition) Act 1998.
(2) The cancellation does not apply if the provision of the other Act is
enacted after the commencement of this clause and refers
specifically to charge imposed by the Datacasting Charge
(Imposition) Act 1998.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 7 Injunctions
Clause 54
122 Broadcasting Services Act 1992
Part 7—Injunctions
54 Injunctions
Restraining injunctions
(1) If:
(a) the holder of a commercial television broadcasting licence
has, in accordance with the commercial television conversion
scheme, given an implementation plan to the ACMA; and
(b) the ACMA has approved the implementation plan; and
(c) the holder has engaged, is engaging or is proposing to engage
in any conduct in contravention of the implementation plan;
the Federal Court may, on the application of the ACMA, grant an
injunction:
(d) restraining the holder from engaging in the conduct; and
(e) if, in the court’s opinion, it is desirable to do so—requiring
the holder to do something.
(2) If a person has engaged, is engaging or is proposing to engage in
any conduct in contravention of Part 5 of this Schedule, the Federal
Court may, on the application of the ACMA or of the access seeker
referred to in that Part, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do so—requiring
the person to do something.
Performance injunctions
(3) If:
(a) the holder of a commercial television broadcasting licence
has, in accordance with the commercial television conversion
scheme, given an implementation plan to the ACMA; and
(b) the ACMA has approved the implementation plan; and
(c) the holder has refused or failed, or is refusing or failing, or is
proposing to refuse or fail, to do an act or thing; and
(d) the refusal or failure was, is or would be a contravention of
the implementation plan;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Injunctions Part 7
Clause 55
Broadcasting Services Act 1992 123
the Federal Court may, on the application of the ACMA, grant an
injunction requiring the holder to do that act or thing.
(4) If:
(a) a person has refused or failed, or is refusing or failing, or is
proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is or would be a contravention of
Part 5 of this Schedule;
the Federal Court may, on the application of the ACMA or of the
access seeker referred to in that Part, grant an injunction requiring
the person to do that act or thing.
55 Interim injunctions
Grant of interim injunction
(1) If an application is made to the court for an injunction under
clause 54, the court may, before considering the application, grant
an interim injunction restraining a person from engaging in
conduct of a kind referred to in that clause.
No undertakings as to damages
(2) The court is not to require an applicant for an injunction under
clause 54, as a condition of granting an interim injunction, to give
any undertakings as to damages.
56 Discharge etc. of injunctions
The court may discharge or vary an injunction granted under this
Part.
57 Certain limits on granting injunctions not to apply
Restraining injunctions
(1) The power of the court under this Part to grant an injunction
restraining a person from engaging in conduct of a particular kind
may be exercised:
(a) if the court is satisfied that the person has engaged in conduct
of that kind—whether or not it appears to the court that the
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 7 Injunctions
Clause 58
124 Broadcasting Services Act 1992
person intends to engage again, or to continue to engage, in
conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will engage in conduct of that kind—
whether or not the person has previously engaged in conduct
of that kind and whether or not there is an imminent danger
of substantial damage to any person if the person engages in
conduct of that kind.
Performance injunctions
(2) The power of the court under this Part to grant an injunction
requiring a person to do an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to
do that act or thing—whether or not it appears to the court
that the person intends to refuse or fail again, or to continue
to refuse or fail, to do that act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will refuse or fail to do that act or
thing—whether or not the person has previously refused or
failed to do that act or thing and whether or not there is an
imminent danger of substantial damage to any person if the
person refuses or fails to do that act or thing.
58 Other powers of the court unaffected
The powers conferred on the court under this Part are in addition
to, and not instead of, any other powers of the court, whether
conferred by this Act or otherwise.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Reviews Part 8
Broadcasting Services Act 1992 125
Part 8—Reviews
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 10 Review of decisions
Clause 62
126 Broadcasting Services Act 1992
Part 10—Review of decisions
62 Review by the AAT
Commercial television licensees
(1) An application may be made to the AAT for a review of any of the
following decisions made by the ACMA under the commercial
television conversion scheme:
(a) a decision to refuse to approve an implementation plan, or a
variation of an implementation plan, given to the ACMA by
the holder of a commercial television broadcasting licence;
(b) a decision that the holder of a commercial television
broadcasting licence has failed to satisfy the ACMA that
exceptional circumstances exist as mentioned in
subclause 8(2), (3) or (7) (which deal with surrender of
transmitter licences);
(c) a decision to issue a replacement transmitter licence to the
holder of a commercial television broadcasting licence as
mentioned in subclause 8(8) or (10A);
(d) a prescribed decision that relates to the holder of a
commercial television broadcasting licence.
(2) An application under subclause (1) may only be made by the
licensee concerned.
National broadcasters
(3) An application may be made to the AAT for a review of any of the
following decisions made by the ACMA under the national
television conversion scheme:
(a) a decision that a national broadcaster has failed to satisfy the
ACMA that exceptional circumstances exist as mentioned in
subclause 23(2), (3) or (7) (which deal with surrender of
transmitter licences);
(b) a decision to issue a replacement transmitter licence to a
national broadcaster as mentioned in subclause 23(8) or
(10A);
(c) a prescribed decision that relates to a national broadcaster.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Review of decisions Part 10
Clause 63
Broadcasting Services Act 1992 127
(4) An application under subclause (3) may only be made by the
national broadcaster concerned.
Transmitter access regime
(5) An application may be made to the AAT for a review of a decision
of the ACMA to issue a certificate under subclause 45(5), 45A(6)
or 46(5).
(6) An application under subclause (5) may only be made by the
access seeker concerned.
(7) An application may be made to the AAT for a review of a decision
of the ACMA to refuse to issue a certificate under subclause 45(5)
or 46(5).
(8) An application under subclause (7) may only be made by the
owner or operator of the broadcasting transmission tower
concerned.
(9) An application may be made to the AAT for a review of a decision
of the ACMA to refuse to issue a certificate under
subclause 45A(6).
(10) An application under subclause (9) may only be made by the
owner or operator of the designated associated facility concerned.
63 Notification of decisions to include notification of reasons and
appeal rights
If the ACMA makes a decision that is reviewable under clause 62,
the ACMA is to include in the document by which the decision is
notified:
(a) a statement setting out the reasons for the decision; and
(b) a statement to the effect that an application may be made to
the AAT for a review of the decision.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 4 Digital television broadcasting
Part 11 Regional equalisation plan
Clause 64
128 Broadcasting Services Act 1992
Part 11—Regional equalisation plan
64 Regional equalisation plan
(1) As soon as practicable after the commencement of this clause, the
Minister must, by writing, formulate a plan (the regional
equalisation plan) which specifies the measures proposed to be
taken by the Minister or the Commonwealth Government:
(a) to facilitate the provision of commercial television
broadcasting services transmitted in digital mode in regional
licence areas; and
(b) to facilitate the provision of datacasting services transmitted
in digital mode in regional licence areas by the holders of
commercial television broadcasting licences.
Objectives
(2) In formulating or varying the regional equalisation plan, the
Minister must have regard to the following objectives:
(a) the objective of maximising the diversity of choice in
television services provided in regional licence areas;
(b) the objective of bringing to regional licence areas a similar
range of entertainment and information services as are
available in metropolitan licence areas;
(c) the objective of maintaining the financial viability of the
commercial television broadcasting industry in regional
licence areas;
(d) the objective of providing commercial television
broadcasting services in regional licence areas that are
relevant to, and responsive to, local needs in those areas;
(e) the objective of discouraging the concentration of media
ownership in regional licence areas.
(3) Subclause (2) does not limit the matters to which the Minister may
have regard.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Digital television broadcasting Schedule 4
Regional equalisation plan Part 11
Clause 64
Broadcasting Services Act 1992 129
Variation of plan
(4) The regional equalisation plan may be varied, but not revoked, in
accordance with subsection 33(3) of the Acts Interpretation Act
1901.
(5) Subclause (4) does not limit the application of subsection 33(3) of
the Acts Interpretation Act 1901 to other instruments under this
Act.
Disallowable instrument
(6) An instrument under subclause (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act 1901.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 1 Introduction
Clause 2
130 Broadcasting Services Act 1992
Schedule 5—Online services Note: See section 216B.
Part 1—Introduction
2 Simplified outline
The following is a simplified outline of this Schedule:
• This Schedule sets up a system for regulating certain aspects
of the internet industry.
• If the ACMA is satisfied that internet content hosted outside
Australia is prohibited content or potential prohibited content,
the ACMA must:
(a) if the ACMA considers that the content is of a
sufficiently serious nature to warrant referral to a
law enforcement agency—notify the content to an
Australian police force; and
(b) notify the content to internet service providers so
that the providers can deal with the content in
accordance with procedures specified in an
industry code or industry standard (for example,
procedures for the filtering, by technical means, of
such content).
• Bodies and associations that represent the internet service
provider section of the internet industry may develop industry
codes.
• The ACMA has a reserve power to make an industry standard
if there are no industry codes or if an industry code is
deficient.
• The ACMA may make online provider determinations
regulating internet service providers.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Introduction Part 1
Clause 3
Broadcasting Services Act 1992 131
3 Definitions
In this Schedule, unless the contrary intention appears:
AAT means the Administrative Appeals Tribunal.
access includes:
(a) access that is subject to a pre-condition (for example, the use
of a password); and
(b) access by way of push technology; and
(c) access by way of a standing request.
adult means an individual who is 18 or older.
Australia, when used in a geographical sense, includes all the
external Territories.
Australian police force means:
(a) the Australian Federal Police; or
(b) the police force of a State or Territory.
child means an individual who is not an adult.
civil proceeding includes a civil action.
Classification Board means the Classification Board established
by the Classification (Publications, Films and Computer Games)
Act 1995.
classified means classified under Schedule 7.
computer game has the same meaning as in the Classification
(Publications, Films and Computer Games) Act 1995.
data storage device means any article or material (for example, a
disk) from which information is capable of being reproduced, with
or without the aid of any other article or device.
designated notification scheme means a scheme:
(a) in the nature of a scheme for substituted service; and
(b) under which the ACMA is taken, for the purposes of this
Schedule, to have notified each internet service provider of a
matter or thing.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 1 Introduction
Clause 3
132 Broadcasting Services Act 1992
Note: For example, the ACMA may make matters or things available on the
internet (with or without security measures).
film has the same meaning as in the Classification (Publications,
Films and Computer Games) Act 1995.
Note: Film is defined broadly in that Act, and includes any form of
recording from which a visual image can be produced.
immediate circle has the same meaning as in the
Telecommunications Act 1997.
information means information:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or
otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms.
internet carriage service means a listed carriage service that
enables end-users to access the internet.
internet content means information that:
(a) is kept on a data storage device; and
(b) is accessed, or available for access, using an internet carriage
service;
but does not include:
(c) ordinary electronic mail; or
(d) information that is transmitted in the form of a broadcasting
service.
internet content host means a person who hosts internet content in
Australia, or who proposes to host internet content in Australia.
internet service provider has the meaning given by clause 8.
listed carriage service has the same meaning as in the
Telecommunications Act 1997.
online provider rule has the meaning given by clause 79.
ordinary electronic mail does not include a posting to a
newsgroup.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Introduction Part 1
Clause 5
Broadcasting Services Act 1992 133
point-to-multipoint service has the same meaning as in the
Telecommunications Act 1997.
potential prohibited content has the same meaning as in
Schedule 7.
prohibited content has the same meaning as in Schedule 7.
special access-prevention notice means a notice under clause 47.
standard access-prevention notice means a notice under
paragraph 40(1)(c) of this Schedule.
5 Internet content that consists of a film
For the purposes of this Schedule, in determining whether internet
content consists of the entire unmodified contents of a film,
disregard any differences between:
(a) the technique used to embody sounds and/or visual images in
the film; and
(b) the technique used to embody the sounds and/or visual
images in a form in which they can be accessed on the
internet.
7 Extended meaning of use
Unless the contrary intention appears, a reference in this Schedule
to the use of a thing is a reference to the use of the thing either:
(a) in isolation; or
(b) in conjunction with one or more other things.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 2 Internet service providers
Clause 8
134 Broadcasting Services Act 1992
Part 2—Internet service providers
8 Internet service providers
Basic definition
(1) For the purposes of this Schedule, if a person supplies, or proposes
to supply, an internet carriage service to the public, the person is an
internet service provider.
Declared internet service providers
(2) The Minister may, by legislative instrument, declare that a
specified person who supplies, or proposes to supply, a specified
internet carriage service is an internet service provider for the
purposes of this Schedule. A declaration under this subclause has
effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
9 Supply to the public
(1) This clause sets out the circumstances in which an internet carriage
service is taken, for the purposes of subclause 8(1), to be supplied
to the public.
(2) If:
(a) an internet carriage service is used for the carriage of
information between 2 end-users; and
(b) each end-user is outside the immediate circle of the supplier
of the service;
the service is supplied to the public.
Note: If a company makes internet content available for access on the
internet, and an individual obtains access to the content using an
internet carriage service, the company and the individual are end-users
in relation to the carriage of the content by the internet carriage
service.
(3) If:
(a) an internet carriage service is used to supply
point-to-multipoint services to end-users; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Internet service providers Part 2
Clause 9
Broadcasting Services Act 1992 135
(b) at least one end-user is outside the immediate circle of the
supplier of the service;
the service is supplied to the public.
(4) If:
(a) an internet carriage service is used to supply designated
content services (other than point-to-multipoint services) to
end-users; and
(b) at least one end-user is outside the immediate circle of the
supplier of the service;
the service is supplied to the public.
(5) For the purposes of this clause, a designated content service is a
content service of a kind specified in a determination made by the
Minister by legislative instrument.
(7) In this clause:
content service has the same meaning as in the
Telecommunications Act 1997.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 4 Complaints to, and investigations by, the ACMA
Division 1 Making of complaints to the ACMA
Clause 23
136 Broadcasting Services Act 1992
Part 4—Complaints to, and investigations by, the
ACMA
Division 1—Making of complaints to the ACMA
23 Complaints about breaches of online provider rules etc.
If a person has reason to believe that an internet service provider:
(a) has contravened a code registered under Part 5 of this
Schedule that is applicable to the provider; or
(b) has contravened an online provider rule that is applicable to
the provider;
the person may make a complaint to the ACMA about the matter.
24 Form of complaint
(1) A complaint under this Division is to be in writing.
(2) However, the ACMA may permit complaints to be given, in
accordance with specified software requirements, by way of a
specified kind of electronic transmission.
25 Residency etc. of complainant
A person is not entitled to make a complaint under this Division
unless the person is:
(a) an individual who resides in Australia; or
(b) a body corporate that carries on activities in Australia; or
(c) the Commonwealth, a State or a Territory.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Complaints to, and investigations by, the ACMA Part 4
Investigations by the ACMA Division 2
Clause 26
Broadcasting Services Act 1992 137
Division 2—Investigations by the ACMA
26 Investigation of complaints by the ACMA
(1) The ACMA must investigate a complaint under Division 1.
(2) However, the ACMA need not investigate the complaint if:
(a) the ACMA is satisfied that the complaint is:
(i) frivolous; or
(ii) vexatious; or
(iii) not made in good faith; or
(b) the ACMA has reason to believe that the complaint was
made for the purpose, or for purposes that include the
purpose, of frustrating or undermining the effective
administration of this Schedule.
(3) The ACMA must notify the complainant of the results of such an
investigation.
(4) The ACMA may terminate such an investigation if it is of the
opinion that it does not have sufficient information to conclude the
investigation.
27 ACMA may investigate matters on its own initiative
If the ACMA thinks that it is desirable to do so, the ACMA may
investigate whether an internet service provider:
(a) has contravened a code registered under Part 5 of this
Schedule that is applicable to the provider; or
(b) has contravened an online provider rule that is applicable to
the provider.
28 Conduct of investigations
(1) An investigation under this Division is to be conducted as the
ACMA thinks fit.
(2) The ACMA may, for the purposes of an investigation, obtain
information from such persons, and make such inquiries, as it
thinks fit.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 4 Complaints to, and investigations by, the ACMA
Division 2 Investigations by the ACMA
Clause 29
138 Broadcasting Services Act 1992
(3) This clause has effect subject to Part 13 of this Act (which confers
certain investigative powers on the ACMA).
29 Protection from civil proceedings
Civil proceedings do not lie against a person in respect of loss,
damage or injury of any kind suffered by another person because
of any of the following acts done in good faith:
(a) the making of a complaint under Division 1;
(b) the making of a statement to, or the giving of a document or
information to, the ACMA in connection with an
investigation under this Division.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Complaints to, and investigations by, the ACMA Part 4
Action to be taken in relation to a complaint about prohibited content hosted outside
Australia Division 4
Clause 40
Broadcasting Services Act 1992 139
Division 4—Action to be taken in relation to a complaint
about prohibited content hosted outside Australia
40 Action to be taken in relation to a complaint about prohibited
content hosted outside Australia
(1) If, in the course of an investigation under Division 2 of Part 3 of
Schedule 7, the ACMA is satisfied that internet content hosted
outside Australia is prohibited content or potential prohibited
content, the ACMA must:
(a) if the ACMA considers the content is of a sufficiently serious
nature to warrant referral to a law enforcement agency
(whether in or outside Australia)—notify the content to:
(i) a member of an Australian police force; or
(ii) if there is an arrangement between the ACMA and the
chief (however described) of an Australian police force
under which the ACMA is authorised to notify the
content to a another person or body (whether in or
outside Australia)—that other person or body; and
(b) if a code registered, or standard determined, under Part 5 of
this Schedule deals with the matters referred to in
subclause 60(2)—notify the content to internet service
providers under the designated notification scheme set out in
the code or standard, as the case may be; and
(c) if paragraph (b) does not apply—give each internet service
provider known to the ACMA a written notice (a standard
access-prevention notice) directing the provider to take all
reasonable steps to prevent end-users from accessing the
content.
Note: The ACMA may be taken to have given a notice under
paragraph (c)—see clause 51.
(2) For the purposes of paragraph (1)(c), in determining whether
particular steps are reasonable, regard must be had to:
(a) the technical and commercial feasibility of taking the steps;
and
(b) the matters set out in subsection 4(3).
(3) Subclause (2) does not, by implication, limit the matters to which
regard must be had.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 4 Complaints to, and investigations by, the ACMA
Division 4 Action to be taken in relation to a complaint about prohibited content hosted
outside Australia
Clause 40
140 Broadcasting Services Act 1992
Recognised alternative access-prevention arrangements
(4) An internet service provider is not required to comply with a
standard access-prevention notice in relation to a particular
end-user if access by the end-user is subject to a recognised
alternative access-prevention arrangement (as defined by
subclause (5)) that is applicable to the end-user.
(5) The ACMA may, by legislative instrument, declare that a specified
arrangement is a recognised alternative access-prevention
arrangement for the purposes of the application of this Division to
one or more specified end-users if the ACMA is satisfied that the
arrangement is likely to provide a reasonably effective means of
preventing access by those end-users to prohibited content and
potential prohibited content.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(6) The following are examples of arrangements that could be declared
to be recognised alternative access-prevention arrangements under
subclause (5):
(a) an arrangement that involves the use of regularly updated
internet content filtering software;
(b) an arrangement that involves the use of a ―family-friendly‖
filtered internet carriage service.
Referral to law enforcement agency
(8) The manner in which internet content may be notified under
paragraph (1)(a) to a member of an Australian police force includes
(but is not limited to) a manner ascertained in accordance with an
arrangement between the ACMA and the chief (however
described) of the police force concerned.
(9) If a member of an Australian police force is notified of particular
internet content under this clause, the member may notify the
content to a member of another law enforcement agency (whether
in or outside Australia).
(10) This clause does not, by implication, limit the ACMA’s powers to
refer other matters to a member of an Australian police force.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Complaints to, and investigations by, the ACMA Part 4
Action to be taken in relation to a complaint about prohibited content hosted outside
Australia Division 4
Clause 41
Broadcasting Services Act 1992 141
41 Deferral of action in order to avoid prejudicing a criminal
investigation
(1) If:
(a) in the course of an investigation under Division 2 of Part 3 of
Schedule 7, the ACMA is satisfied that internet content
hosted outside Australia is prohibited content or potential
prohibited content; and
(b) apart from this subclause, the ACMA would be required to
take action under subclause 40(1) in relation to the content;
and
(c) a member of an Australian police force satisfies the ACMA
that the taking of that action should be deferred until the end
of a particular period in order to avoid prejudicing a criminal
investigation;
the ACMA may defer taking that action until the end of that
period.
(2) Subclause (1) has effect despite anything in clause 40.
42 Withdrawal of notification of content—reclassification of internet
content
(1) If:
(a) internet content has been classified by the Classification
Board (otherwise than because of subclause 24(1) or (2) of
Schedule 7); and
(b) the internet content has been notified to internet service
providers as mentioned in paragraph 40(1)(b) of this
Schedule; and
(c) the Classification Board reclassifies the internet content; and
(d) as a result of the reclassification, the internet content ceases
to be prohibited content;
the notification of the internet content is taken to have been
withdrawn.
(2) If:
(a) a notification of internet content is withdrawn under
subclause (1); and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 4 Complaints to, and investigations by, the ACMA
Division 4 Action to be taken in relation to a complaint about prohibited content hosted
outside Australia
Clause 43
142 Broadcasting Services Act 1992
(b) a code registered, or standard determined, under Part 5 of this
Schedule deals with the matters referred to in
subclause 60(2);
the ACMA must notify the withdrawal to internet service providers
under the designated notification scheme set out in the code or
standard, as the case may be.
43 Withdrawal of notification of content—reclassification of internet
content that consists of a film or a computer game
(1) If:
(a) internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the Classification Board reclassifies the film or computer
game under the Classification (Publications, Films and
Computer Games) Act 1995; and
(c) the internet content has been notified to internet service
providers as mentioned in paragraph 40(1)(b) of this
Schedule; and
(d) as a result of the reclassification, the internet content ceases
to be prohibited content;
the notification of the internet content is taken to have been
withdrawn.
(2) If:
(a) a notification of internet content is withdrawn under
subclause (1); and
(b) a code registered, or standard determined, under Part 5 of this
Schedule deals with the matters referred to in
subclause 60(2);
the ACMA must notify the withdrawal to internet service providers
under the designated notification scheme set out in the code or
standard, as the case may be.
44 Revocation of standard access-prevention notice—reclassification
of internet content
(1) If:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Complaints to, and investigations by, the ACMA Part 4
Action to be taken in relation to a complaint about prohibited content hosted outside
Australia Division 4
Clause 45
Broadcasting Services Act 1992 143
(a) internet content has been classified by the Classification
Board (otherwise than because of subclause 24(1) or (2) of
Schedule 7); and
(b) a standard access-prevention notice relating to the internet
content is applicable to a particular internet service provider;
and
(c) the Classification Board reclassifies the internet content; and
(d) as a result of the reclassification, the content ceases to be
prohibited content;
the ACMA is taken to have revoked the standard access-prevention
notice.
(2) If a standard access-prevention notice is revoked under this clause,
the ACMA must give the internet service provider concerned a
written notice stating that the standard access-prevention notice has
been revoked.
Note: The ACMA may be taken to have given a notice under
subclause (2)—see clause 51.
45 Revocation of standard access-prevention notice—reclassification
of internet content that consists of a film or a computer
game
(1) If:
(a) internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the Classification Board reclassifies the film or computer
game under the Classification (Publications, Films and
Computer Games) Act 1995; and
(c) a standard access-prevention notice relating to the internet
content is applicable to a particular internet service provider;
and
(d) as a result of the reclassification, the internet content ceases
to be prohibited content;
the ACMA is taken to have revoked the standard access-prevention
notice.
(2) If a standard access-prevention notice is revoked under this clause,
the ACMA must give the internet service provider concerned a
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 4 Complaints to, and investigations by, the ACMA
Division 4 Action to be taken in relation to a complaint about prohibited content hosted
outside Australia
Clause 46
144 Broadcasting Services Act 1992
written notice stating that the standard access-prevention notice has
been revoked.
Note: The ACMA may be taken to have given a notice under
subclause (2)—see clause 51.
46 Anti-avoidance—notified internet content
(1) If:
(a) particular internet content has been notified to internet
service providers as mentioned in paragraph 40(1)(b) of this
Schedule; and
(b) the notification has not been withdrawn; and
(c) the ACMA is satisfied that internet content (the similar
internet content) that is the same as, or substantially similar
to, the first-mentioned internet content is being hosted
outside Australia; and
(d) the ACMA is satisfied that the similar internet content is
prohibited content or potential prohibited content; and
(e) a code registered, or standard determined, under Part 5 of this
Schedule deals with the matters referred to in
subclause 60(2);
the ACMA must notify the similar internet content to internet
service providers under the designated notification scheme set out
in the code or standard, as the case may be.
(2) If:
(a) particular internet content is notified to internet service
providers as mentioned in paragraph 40(1)(b) of this
Schedule; and
(b) as a result of the application of subclause (1) to that content,
the ACMA notifies similar internet content to internet service
providers in accordance with subclause (1); and
(c) the notification of the first-mentioned content is withdrawn;
the notification of the similar internet content is taken to have been
withdrawn.
(3) If:
(a) a notification of internet content is withdrawn under
subclause (2); and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Complaints to, and investigations by, the ACMA Part 4
Action to be taken in relation to a complaint about prohibited content hosted outside
Australia Division 4
Clause 47
Broadcasting Services Act 1992 145
(b) a code registered, or standard determined, under Part 5 of this
Schedule deals with the matters referred to in
subclause 60(2);
the ACMA must notify the withdrawal to internet service providers
under the designated notification scheme set out in the code or
standard, as the case may be.
47 Anti-avoidance—special access-prevention notice
(1) If:
(a) a standard access-prevention notice relating to particular
internet content is applicable to a particular internet service
provider; and
(b) the ACMA is satisfied that the internet service provider is
supplying an internet carriage service that enables end-users
to access internet content (the similar internet content) that
is the same as, or substantially similar to, the internet content
identified in the standard access-prevention notice; and
(c) the ACMA is satisfied that the similar internet content is
prohibited content or potential prohibited content;
the ACMA may give the provider a written notice (special
access-prevention notice) directing the provider to take all
reasonable steps to prevent end-users from accessing the similar
internet content at any time when the standard access-prevention
notice is in force.
Note: The ACMA may be taken to have given a notice under this clause—
see clause 51.
(2) For the purposes of subclause (1), in determining whether
particular steps are reasonable, regard must be had to:
(a) the technical and commercial feasibility of taking the steps;
and
(b) the matters set out in subsection 4(3).
(3) Subclause (2) does not, by implication, limit the matters to which
regard must be had.
Recognised alternative access-prevention arrangements
(4) An internet service provider is not required to comply with a
special access-prevention notice in relation to a particular end-user
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 4 Complaints to, and investigations by, the ACMA
Division 4 Action to be taken in relation to a complaint about prohibited content hosted
outside Australia
Clause 48
146 Broadcasting Services Act 1992
if access by the end-user is subject to a recognised alternative
access-prevention arrangement (as defined by subclause 40(5)) that
is applicable to the end-user.
48 Compliance with access-prevention notices
Standard access-prevention notice
(1) An internet service provider must comply with a standard
access-prevention notice that applies to the provider as soon as
practicable, and in any event by 6 pm on the next business day,
after the notice was given to the provider.
Special access-prevention notice
(2) An internet service provider must comply with a special
access-prevention notice that applies to the provider as soon as
practicable, and in any event by 6 pm on the next business day,
after the notice was given to the provider.
Note: For enforcement, see Part 6 of this Schedule.
49 Notification of internet content
Internet content may be notified in accordance with this Division
by:
(a) setting out the content; or
(b) describing the content; or
(c) in any other way.
50 Application of notifications under this Division
A notification under this Division applies to particular internet
content only to the extent to which the content is accessed, or
available for access, from a website, or a distinct part of a website,
specified in the notification.
Note: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
51 ACMA may be taken to have issued access-prevention notices
(1) Subject to subclause (2), the ACMA may, by legislative
instrument, formulate a scheme:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Complaints to, and investigations by, the ACMA Part 4
Action to be taken in relation to a complaint about prohibited content hosted outside
Australia Division 4
Clause 51
Broadcasting Services Act 1992 147
(a) in the nature of a scheme for substituted service; and
(b) under which the ACMA is taken, for the purposes of this
Schedule, to have done any or all of the following:
(i) given each internet service provider a standard
access-prevention notice under paragraph 40(1)(c) of
this Schedule;
(ii) in a case where a standard access-prevention notice is
revoked under clause 44 or 45—given each internet
service provider a notice of the revocation under
whichever of subclause 44(2) or 45(2) is applicable;
(iii) given each internet service provider a special
access-prevention notice under clause 47.
(2) It is a minimum requirement for a scheme formulated under
subclause (1) that each internet service provider be alerted by
electronic means to the existence of a notice.
Note: For example, it is not sufficient for the ACMA to make notices
available on the internet (with or without security measures) without
notifying internet service providers that a notice has been issued.
(3) Paragraph 40(1)(c) of this Schedule has effect, in relation to a
scheme under subclause (1), as if the reference in that paragraph to
each internet service provider known to the ACMA were a
reference to each internet service provider.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 5 Industry codes and industry standards
Division 1 Simplified outline
Clause 52
148 Broadcasting Services Act 1992
Part 5—Industry codes and industry standards
Division 1—Simplified outline
52 Simplified outline
The following is a simplified outline of this Part.
• Bodies and associations that represent the internet service
provider section of the internet industry may develop industry
codes.
• Industry codes may be registered by the ACMA.
• Compliance with an industry code is voluntary unless the
ACMA directs a particular participant in the internet industry
to comply with the code.
• The ACMA has a reserve power to make an industry standard
if there are no industry codes or if an industry code is
deficient.
• Compliance with industry standards is mandatory.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Industry codes and industry standards Part 5
Interpretation Division 2
Clause 53
Broadcasting Services Act 1992 149
Division 2—Interpretation
53 Industry codes
For the purposes of this Part, an industry code is a code developed
under this Part (whether or not in response to a request under this
Part).
54 Industry standards
For the purposes of this Part, an industry standard is a standard
determined under this Part.
55 Internet activity
For the purposes of this Part, an internet activity is an activity that
consists of supplying an internet carriage service.
56 Section of the internet industry
(1) For the purposes of this Part, a section of the internet industry is
to be ascertained in accordance with this clause.
(2) For the purposes of this Part, the group consisting of internet
service providers constitutes a section of the internet industry.
57 Participants in a section of the internet industry
For the purposes of this Part, if a person is a member of a group
that constitutes a section of the internet industry, the person is a
participant in that section of the internet industry.
58 Designated body
The Minister may, by legislative instrument, declare that a
specified body or association is the designated body for the
purposes of this Part. The declaration has effect accordingly.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 5 Industry codes and industry standards
Division 3 General principles relating to industry codes and industry standards
Clause 59
150 Broadcasting Services Act 1992
Division 3—General principles relating to industry codes
and industry standards
59 Statement of regulatory policy
(2) The Parliament intends that bodies or associations that the ACMA
is satisfied represent the internet service provider section of the
internet industry should develop no more than 2 codes (industry
codes) that are to apply to participants in that section of the
industry in relation to the internet activities of the participants.
(3) The Parliament intends that, for the internet service provider
section of the internet industry, one of those industry codes should
deal exclusively with the matters set out in subclause 60(2).
60 Matters that must be dealt with by industry codes and industry
standards
General matters
(1) The Parliament intends that, for the internet service provider
section of the internet industry, there should be:
(a) an industry code or an industry standard that deals with; or
(b) an industry code and an industry standard that together deal
with;
each of the following matters:
(c) procedures directed towards the achievement of the objective
of ensuring that online accounts are not provided to children
without the consent of a parent or responsible adult;
(d) giving parents and responsible adults information about how
to supervise and control children’s access to internet content;
(e) procedures to be followed in order to assist parents and
responsible adults to supervise and control children’s access
to internet content;
(f) procedures to be followed in order to inform producers of
internet content about their legal responsibilities in relation to
that content;
(g) telling customers about their rights to make complaints under
clause 23;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Industry codes and industry standards Part 5
General principles relating to industry codes and industry standards Division 3
Clause 60
Broadcasting Services Act 1992 151
(h) procedures to be followed in order to assist customers to
make complaints under clause 23;
(i) procedures to be followed in order to deal with complaints
about unsolicited electronic mail that promotes or advertises
one or more:
(i) websites; or
(ii) distinct parts of websites;
that enable, or purport to enable, end-users to access
information that is likely to cause offence to a reasonable
adult;
(j) subject to subclause (8A), action to be taken to assist in the
development and implementation of internet content filtering
technologies (including labelling technologies);
(k) subject to subclause (8A), giving customers information
about the availability, use and appropriate application of
internet content filtering software;
(l) subject to subclause (8A), procedures directed towards the
achievement of the objective of ensuring that customers have
the option of subscribing to a filtered internet carriage
service;
(la) if a determination is in force under subclause (8A) in relation
to a device:
(i) procedures to be followed in order to inform the users of
such a device of the unavailability of internet content
filtering; and
(ii) procedures directed towards the achievement of the
objective of ensuring that customers have the option of
blocking access to the internet using such a device;
(m) procedures directed towards the achievement of the objective
of ensuring that, in the event that a participant in the internet
service provider section of the internet industry becomes
aware that an internet content host is hosting prohibited
content in Australia, the host is told about the prohibited
content.
Other matters
(2) The Parliament intends that, for the internet service provider
section of the internet industry, there should be:
(a) an industry code or an industry standard that deals with; or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 5 Industry codes and industry standards
Division 3 General principles relating to industry codes and industry standards
Clause 60
152 Broadcasting Services Act 1992
(b) an industry code and an industry standard that together deal
with;
each of the following matters:
(c) the formulation of a designated notification scheme;
(d) subject to subclause (8A), procedures to be followed by
internet service providers in dealing with internet content
notified under paragraph 40(1)(b) of this Schedule or
clause 46 (for example, procedures to be followed by a
particular class of internet service providers for the filtering,
by technical means, of such content).
Designated alternative access-prevention arrangements
(3) An industry code or an industry standard may provide that an
internet service provider is not required to deal with internet
content notified under paragraph 40(1)(b) of this Schedule or
clause 46 by taking steps to prevent particular end-users from
accessing the content if access by the end-users is subject to an
arrangement that is declared by the code or standard to be a
designated alternative access-prevention arrangement for the
purposes of the application of this clause to those end-users.
(4) An industry code developed by a body or association must not
declare that a specified arrangement is a designated alternative
access-prevention arrangement for the purposes of the application
of this clause to one or more specified end-users unless the body or
association is satisfied that the arrangement is likely to provide a
reasonably effective means of preventing access by those end-users
to prohibited content and potential prohibited content.
Note: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
(5) An industry standard made by the ACMA must not declare that a
specified arrangement is a designated alternative access-prevention
arrangement for the purposes of the application of this clause to
one or more specified end-users unless the ACMA is satisfied that
the arrangement is likely to provide a reasonably effective means
of preventing access by those end-users to prohibited content and
potential prohibited content.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Industry codes and industry standards Part 5
General principles relating to industry codes and industry standards Division 3
Clause 60
Broadcasting Services Act 1992 153
(6) The following are examples of arrangements that could be declared
to be designated alternative access-prevention arrangements:
(a) an arrangement that involves the use of regularly updated
internet content filtering software;
(b) an arrangement that involves the use of a ―family-friendly‖
filtered internet carriage service.
(7) For the purposes of this Schedule, if an industry code:
(a) deals to any extent with procedures to be followed by internet
service providers in dealing with internet content notified
under paragraph 40(1)(b) of this Schedule or clause 46; and
(b) makes provision as mentioned in subclause (3);
then:
(c) the code is taken to deal with the matter set out in
paragraph (2)(d); and
(d) the code is taken to be consistent with subclause (2).
(8) For the purposes of this Schedule, if an industry standard:
(a) deals to any extent with procedures to be followed by internet
service providers in dealing with internet content notified
under paragraph 40(1)(b) of this Schedule or clause 46; and
(b) makes provision as mentioned in subclause (3);
then:
(c) the standard is taken to deal with the matter set out in
paragraph (2)(d); and
(d) the standard is taken to be consistent with subclause (2).
Internet content filtering—devices
(8A) If the Minister is satisfied that internet content filtering is not
viable in relation to access to internet content using a particular
device (for example, a mobile telephone handset), the Minister
may, by legislative instrument, determine that paragraphs (1)(j), (k)
and (l) and (2)(d) do not apply in relation to access to internet
content using that device.
Clause does not limit matters
(9) This clause does not, by implication, limit the matters that may be
dealt with by industry codes and industry standards.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 5 Industry codes and industry standards
Division 3 General principles relating to industry codes and industry standards
Clause 61
154 Broadcasting Services Act 1992
61 Industry codes and industry standards not to deal with certain
matters
For the purposes of this Part, an industry code or an industry
standard that deals with a particular matter has no effect to the
extent (if any) to which the matter is dealt with by:
(a) a code registered, or a standard determined, under Part 6 of
the Telecommunications Act 1997; or
(b) the Telecommunications Industry Ombudsman scheme
(within the meaning of that Act).
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Industry codes and industry standards Part 5
Industry codes Division 4
Clause 62
Broadcasting Services Act 1992 155
Division 4—Industry codes
62 Registration of industry codes
(1) This clause applies if:
(a) the ACMA is satisfied that a body or association represents a
particular section of the internet industry; and
(b) that body or association develops an industry code that
applies to participants in that section of the industry and deals
with one or more matters relating to the internet activities of
those participants; and
(c) the body or association gives a copy of the code to the
ACMA; and
(d) the ACMA is satisfied that:
(i) to the extent to which the code deals with one or more
matters of substantial relevance to the community—the
code provides appropriate community safeguards for
that matter or those matters; and
(ii) to the extent to which the code deals with one or more
matters that are not of substantial relevance to the
community—the code deals with that matter or those
matters in an appropriate manner; and
(e) the ACMA is satisfied that, before giving the copy of the
code to the ACMA:
(i) the body or association published a draft of the code and
invited members of the public to make submissions to
the body or association about the draft within a
specified period; and
(ii) the body or association gave consideration to any
submissions that were received from members of the
public within that period; and
(f) the ACMA is satisfied that, before giving the copy of the
code to the ACMA:
(i) the body or association published a draft of the code and
invited participants in that section of the industry to
make submissions to the body or association about the
draft within a specified period; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 5 Industry codes and industry standards
Division 4 Industry codes
Clause 63
156 Broadcasting Services Act 1992
(ii) the body or association gave consideration to any
submissions that were received from participants in that
section of the industry within that period; and
(g) the ACMA is satisfied that the designated body has been
consulted about the development of the code; and
(i) in a case where the code:
(i) relates to the internet service provider section of the
internet industry; and
(ii) does not deal with a matter set out in subclause 60(2);
the code is consistent with subclauses 59(2) and 60(1); and
(j) in a case where the code:
(i) relates to the internet service provider section of the
internet industry; and
(ii) deals with a matter set out in subclause 60(2);
the code is consistent with subclauses 59(2) and (3) and
60(2).
Note: Designated body is defined by clause 58.
(2) The ACMA must register the code by including it in the Register
of industry codes kept under clause 78.
(3) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must
run for at least 30 days.
(4) If:
(a) an industry code (the new code) is registered under this Part;
and
(b) the new code is expressed to replace another industry code;
the other code ceases to be registered under this Part when the new
code is registered.
63 ACMA may request codes
(1) If the ACMA is satisfied that a body or association represents a
particular section of the internet industry, the ACMA may, by
written notice given to the body or association, request the body or
association to:
(a) develop an industry code that applies to participants in that
section of the industry and deals with one or more specified
matters relating to the internet activities of those participants;
and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Industry codes and industry standards Part 5
Industry codes Division 4
Clause 64
Broadcasting Services Act 1992 157
(b) give the ACMA a copy of the code within the period
specified in the notice.
(2) The period specified in a notice under subclause (1) must run for at
least 120 days.
(3) The ACMA must not make a request under subclause (1) in
relation to a particular section of the internet industry unless the
ACMA is satisfied that:
(a) the development of the code is necessary or convenient in
order to:
(i) provide appropriate community safeguards; or
(ii) otherwise deal with the performance or conduct of
participants in that section of the industry; and
(b) in the absence of the request, it is unlikely that an industry
code would be developed within a reasonable period.
(4) The ACMA may vary a notice under subclause (1) by extending
the period specified in the notice.
(5) Subclause (4) does not, by implication, limit the application of
subsection 33(3) of the Acts Interpretation Act 1901.
(6) A notice under subclause (1) may specify indicative targets for
achieving progress in the development of the code (for example, a
target of 60 days to develop a preliminary draft of the code).
64 Publication of notice where no body or association represents a
section of the internet industry
(1) If the ACMA is satisfied that a particular section of the internet
industry is not represented by a body or association, the ACMA
may publish a notice in the Gazette:
(a) stating that, if such a body or association were to come into
existence within a specified period, the ACMA would be
likely to give a notice to that body or association under
subclause 63(1); and
(b) setting out the matter or matters relating to internet activities
that would be likely to be specified in the subclause 63(1)
notice.
(2) The period specified in a notice under subclause (1) must run for at
least 60 days.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 5 Industry codes and industry standards
Division 4 Industry codes
Clause 65
158 Broadcasting Services Act 1992
65 Replacement of industry codes
(1) Changes to an industry code are to be achieved by replacing the
code instead of varying the code.
(2) If the replacement code differs only in minor respects from the
original code, clause 62 has effect, in relation to the registration of
the code, as if paragraphs 62(1)(e) and (f) of this Schedule had not
been enacted.
Note: Paragraphs 62(1)(e) and (f) deal with submissions about draft codes.
66 Compliance with industry codes
(1) If:
(a) a person is a participant in a particular section of the internet
industry; and
(b) the ACMA is satisfied that the person has contravened, or is
contravening, an industry code that:
(i) is registered under this Part; and
(ii) applies to participants in that section of the industry;
the ACMA may, by written notice given to the person, direct the
person to comply with the industry code.
(2) A person must comply with a direction under subclause (1).
Note: For enforcement, see Part 6 of this Schedule.
67 Formal warnings—breach of industry codes
(1) This clause applies to a person who is a participant in a particular
section of the internet industry.
(2) The ACMA may issue a formal warning if the person contravenes
an industry code registered under this Part.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Industry codes and industry standards Part 5
Industry standards Division 5
Clause 68
Broadcasting Services Act 1992 159
Division 5—Industry standards
68 ACMA may determine an industry standard if a request for an
industry code is not complied with
(1) This clause applies if:
(a) the ACMA has made a request under subclause 63(1) in
relation to the development of a code that is to:
(i) apply to participants in a particular section of the
internet industry; and
(ii) deal with one or more matters relating to the internet
activities of those participants; and
(b) any of the following conditions is satisfied:
(i) the request is not complied with;
(ii) if indicative targets for achieving progress in the
development of the code were specified in the notice of
request—any of those indicative targets were not met;
(iii) the request is complied with, but the ACMA
subsequently refuses to register the code; and
(c) the ACMA is satisfied that it is necessary or convenient for
the ACMA to determine a standard in order to:
(i) provide appropriate community safeguards in relation to
that matter or those matters; or
(ii) otherwise regulate adequately participants in that
section of the industry in relation to that matter or those
matters.
(2) The ACMA may, by legislative instrument, determine a standard
that applies to participants in that section of the industry and deals
with that matter or those matters. A standard under this subclause
is to be known as an industry standard.
(3) Before determining an industry standard under this clause, the
ACMA must consult the body or association to whom the request
mentioned in paragraph (1)(a) was made.
(5) The Minister may give the ACMA a written direction as to the
exercise of its powers under this clause.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 5 Industry codes and industry standards
Division 5 Industry standards
Clause 69
160 Broadcasting Services Act 1992
69 ACMA may determine industry standard where no industry
body or association formed
(1) This clause applies if:
(a) the ACMA is satisfied that a particular section of the internet
industry is not represented by a body or association; and
(b) the ACMA has published a notice under subclause 64(1)
relating to that section of the industry; and
(c) that notice:
(i) states that, if such a body or association were to come
into existence within a particular period, the ACMA
would be likely to give a notice to that body or
association under subclause 63(1); and
(ii) sets out one or more matters relating to the internet
activities of the participants in that section of the
industry; and
(d) no such body or association comes into existence within that
period; and
(e) the ACMA is satisfied that it is necessary or convenient for
the ACMA to determine a standard in order to:
(i) provide appropriate community safeguards in relation to
that matter or those matters; or
(ii) otherwise regulate adequately participants in that
section of the industry in relation to that matter or those
matters.
(2) The ACMA may, by legislative instrument, determine a standard
that applies to participants in that section of the industry and deals
with that matter or those matters. A standard under this subclause
is to be known as an industry standard.
(4) The Minister may give the ACMA a written direction as to the
exercise of its powers under this clause.
70 ACMA may determine industry standards—total failure of
industry codes
(1) This clause applies if:
(a) an industry code that:
(i) applies to participants in a particular section of the
internet industry; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Industry codes and industry standards Part 5
Industry standards Division 5
Clause 70
Broadcasting Services Act 1992 161
(ii) deals with one or more matters relating to the internet
activities of those participants;
has been registered under this Part for at least 180 days; and
(b) the ACMA is satisfied that the code is totally deficient (as
defined by subclause (7)); and
(c) the ACMA has given the body or association that developed
the code a written notice requesting that deficiencies in the
code be addressed within a specified period; and
(d) that period ends and the ACMA is satisfied that it is
necessary or convenient for the ACMA to determine a
standard that applies to participants in that section of the
industry and deals with that matter or those matters.
(2) The period specified in a notice under paragraph (1)(c) must run
for at least 30 days.
(3) The ACMA may, by legislative instrument, determine a standard
that applies to participants in that section of the industry and deals
with that matter or those matters. A standard under this subclause
is to be known as an industry standard.
(4) If the ACMA is satisfied that a body or association represents that
section of the industry, the ACMA must consult the body or
association before determining an industry standard under
subclause (3).
(6) The industry code ceases to be registered under this Part on the day
on which the industry standard comes into force.
(7) For the purposes of this clause, an industry code that applies to
participants in a particular section of the internet industry and deals
with one or more matters relating to the internet activities of those
participants is totally deficient if, and only if:
(a) the code is not operating to provide appropriate community
safeguards in relation to that matter or those matters; or
(b) the code is not otherwise operating to regulate adequately
participants in that section of the industry in relation to that
matter or those matters.
(8) The Minister may give the ACMA a written direction as to the
exercise of its powers under this clause.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 5 Industry codes and industry standards
Division 5 Industry standards
Clause 71
162 Broadcasting Services Act 1992
71 ACMA may determine industry standards—partial failure of
industry codes
(1) This clause applies if:
(a) an industry code that:
(i) applies to participants in a particular section of the
internet industry; and
(ii) deals with 2 or more matters relating to the internet
activities of those participants;
has been registered under this Part for at least 180 days; and
(b) clause 70 does not apply to the code; and
(c) the ACMA is satisfied that the code is deficient (as defined
by subclause (7)) to the extent to which the code deals with
one or more of those matters (the deficient matter or
deficient matters); and
(d) the ACMA has given the body or association that developed
the code a written notice requesting that deficiencies in the
code be addressed within a specified period; and
(e) that period ends and the ACMA is satisfied that it is
necessary or convenient for the ACMA to determine a
standard that applies to participants in that section of the
industry and deals with the deficient matter or deficient
matters.
(2) The period specified in a notice under paragraph (1)(c) must run
for at least 30 days.
(3) The ACMA may, by legislative instrument, determine a standard
that applies to participants in that section of the industry and deals
with the deficient matter or deficient matters. A standard under this
subclause is to be known as an industry standard.
(4) If the ACMA is satisfied that a body or association represents that
section of the industry, the ACMA must consult the body or
association before determining an industry standard under
subclause (3).
(6) On and after the day on which the industry standard comes into
force, the industry code has no effect to the extent to which it deals
with the deficient matter or deficient matters. However, this
subclause does not affect:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Industry codes and industry standards Part 5
Industry standards Division 5
Clause 72
Broadcasting Services Act 1992 163
(a) the continuing registration of the remainder of the industry
code; or
(b) any investigation, proceeding or remedy in respect of a
contravention of the industry code or clause 66 that occurred
before that day.
(7) For the purposes of this clause, an industry code that applies to
participants in a particular section of the internet industry and deals
with 2 or more matters relating to the internet activities of those
participants is deficient to the extent to which it deals with a
particular one of those matters if, and only if:
(a) the code is not operating to provide appropriate community
safeguards in relation to that matter; or
(b) the code is not otherwise operating to regulate adequately
participants in that section of the industry in relation to that
matter.
(8) The Minister may give the ACMA a written direction as to the
exercise of its powers under this clause.
72 Compliance with industry standards
If:
(a) an industry standard that applies to participants in a particular
section of the internet industry is registered under this Part;
and
(b) a person is a participant in that section of the internet
industry;
the person must comply with the industry standard.
Note: For enforcement, see Part 6 of this Schedule.
73 Formal warnings—breach of industry standards
(1) This clause applies to a person who is a participant in a particular
section of the internet industry.
(2) The ACMA may issue a formal warning if the person contravenes
an industry standard registered under this Part.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 5 Industry codes and industry standards
Division 5 Industry standards
Clause 74
164 Broadcasting Services Act 1992
74 Variation of industry standards
The ACMA may, by legislative instrument, vary an industry
standard that applies to participants in a particular section of the
internet industry if it is satisfied that it is necessary or convenient
to do so to:
(a) provide appropriate community safeguards in relation to one
or more matters relating to the internet activities of those
participants; and
(b) otherwise regulate adequately those participants in relation to
one or more matters relating to the internet activities of those
participants.
75 Revocation of industry standards
(1) The ACMA may, by legislative instrument, revoke an industry
standard.
(2) If:
(a) an industry code is registered under this Part; and
(b) the code is expressed to replace an industry standard;
the industry standard is revoked when the code is registered.
76 Public consultation on industry standards
(1) Before determining or varying an industry standard, the ACMA
must:
(a) cause to be published in a newspaper circulating in each State
a notice:
(i) stating that the ACMA has prepared a draft of the
industry standard or variation; and
(ii) stating that free copies of the draft will be made
available to members of the public during normal office
hours throughout the period specified in the notice; and
(iii) specifying the place or places where the copies will be
available; and
(iv) inviting interested persons to give written comments
about the draft to the ACMA within the period specified
under subparagraph (ii); and
(b) make copies of the draft available in accordance with the
notice.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Industry codes and industry standards Part 5
Industry standards Division 5
Clause 77
Broadcasting Services Act 1992 165
(2) The period specified under subparagraph (1)(a)(ii) must run for at
least 30 days after the publication of the notice.
(3) Subclause (1) does not apply to a variation if the variation is of a
minor nature.
(4) If interested persons have given comments in accordance with a
notice under subclause (1), the ACMA must have due regard to
those comments in determining or varying the industry standard, as
the case may be.
(5) In this clause:
State includes the Northern Territory and the Australian Capital
Territory.
77 Consultation with designated body
(1) Before determining or varying an industry standard, the ACMA
must consult the designated body.
(2) Before revoking an industry standard under subclause 75(1), the
ACMA must consult the designated body.
Note: Designated body is defined by clause 58.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 5 Industry codes and industry standards
Division 6 Register of industry codes and industry standards
Clause 78
166 Broadcasting Services Act 1992
Division 6—Register of industry codes and industry
standards
78 ACMA to maintain Register of industry codes and industry
standards
(1) The ACMA is to maintain a Register in which the ACMA
includes:
(a) all industry codes required to be registered under this Part;
and
(b) all industry standards; and
(c) all requests made under clause 63; and
(d) all notices under clause 64; and
(e) all directions under clause 66.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Online provider rules Part 6
Clause 79
Broadcasting Services Act 1992 167
Part 6—Online provider rules
79 Online provider rules
For the purposes of this Schedule, each of the following is an
online provider rule:
(e) the rule set out in subclause 48(1);
(f) the rule set out in subclause 48(2);
(g) the rule set out in subclause 66(2);
(h) the rule set out in clause 72;
(i) each of the rules (if any) set out in an online provider
determination in force under clause 80.
80 Online provider determinations
(1) The ACMA may, by legislative instrument, make a determination
setting out rules that apply to internet service providers in relation
to the supply of internet carriage services.
(3) A determination under subclause (1) is called an online provider
determination.
(4) An online provider determination has effect only to the extent that:
(a) it is authorised by paragraph 51(v) of the Constitution (either
alone or when read together with paragraph 51(xxxix) of the
Constitution); or
(b) both:
(i) it is authorised by section 122 of the Constitution; and
(ii) it would have been authorised by paragraph 51(v) of the
Constitution (either alone or when read together with
paragraph 51(xxxix) of the Constitution) if section 51 of
the Constitution extended to the Territories.
(5) The ACMA must not make an online provider determination
unless the determination relates to a matter specified in the
regulations.
(6) The ACMA must not make an online provider determination if the
determination relates to a matter specified in regulations in force
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 6 Online provider rules
Clause 81
168 Broadcasting Services Act 1992
for the purposes of subsection 99(3) of the Telecommunications
Act 1997.
(7) An online provider determination may make provision for or in
relation to a particular matter by empowering the ACMA to make
decisions of an administrative character.
81 Exemptions from online provider determinations
(1) The Minister may, by legislative instrument, determine that a
specified internet service provider is exempt from online provider
determinations.
(2) The Minister may, by legislative instrument, determine that a
specified internet service provider is exempt from a specified
online provider determination.
(3) A determination under this clause may be unconditional or subject
to such conditions (if any) as are specified in the determination.
(4) A determination under this clause has effect accordingly.
82 Compliance with online provider rules
(1) A person is guilty of an offence if:
(a) an online provider rule is applicable to the person; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the rule.
Penalty: 50 penalty units.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body
corporate up to 5 times the maximum amount the court could fine a
person under this clause.
(2) In this clause:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
83 Remedial directions—breach of online provider rules
(1) This clause applies if an internet service provider has contravened,
or is contravening, an online provider rule.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Online provider rules Part 6
Clause 84
Broadcasting Services Act 1992 169
(2) The ACMA may give the provider a written direction requiring the
provider to take specified action directed towards ensuring that the
provider does not contravene the rule, or is unlikely to contravene
the rule, in the future.
(3) The following are examples of the kinds of direction that may be
given to an internet service provider under subclause (2):
(a) a direction that the provider implement effective
administrative systems for monitoring compliance with an
online provider rule;
(b) a direction that the provider implement a system designed to
give the provider’s employees, agents and contractors a
reasonable knowledge and understanding of the requirements
of an online provider rule, in so far as those requirements
affect the employees, agents or contractors concerned.
(4) A person is guilty of an offence if:
(a) the person is subject to a direction under subclause (2); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the direction.
Penalty: 50 penalty units.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body
corporate up to 5 times the maximum amount the court could fine a
person under this subclause.
(5) In this clause:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
84 Formal warnings—breach of online provider rules
The ACMA may issue a formal warning if a person contravenes an
online provider rule.
85 Federal Court may order a person to cease supplying internet
carriage services
(1) If the ACMA is satisfied that a person who is an internet service
provider is supplying an internet carriage service otherwise than in
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 6 Online provider rules
Clause 85
170 Broadcasting Services Act 1992
accordance with an online provider rule, the ACMA may apply to
the Federal Court for an order that the person cease supplying that
internet carriage service.
(2) If the Federal Court is satisfied, on such an application, that the
person is supplying an internet carriage service otherwise than in
accordance with the online provider rule, the Federal Court may
order the person to cease supplying that internet carriage service.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Offences Part 7
Clause 86
Broadcasting Services Act 1992 171
Part 7—Offences
86 Continuing offences
A person who contravenes clause 82 or subclause 83(4) is guilty of
a separate offence in respect of each day (including the day of a
conviction for the offence or any later day) during which the
contravention continues.
87 Conduct by directors, employees and agents
Body corporate
(1) If, in proceedings for an ancillary offence relating to this Schedule,
it is necessary to establish the state of mind of a body corporate in
relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, employee or
agent of the body corporate within the scope of his or her
actual or apparent authority; and
(b) that the director, employee or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a
director, employee or agent of the body corporate within the scope
of his or her actual or apparent authority is taken, for the purposes
of a prosecution for:
(a) an offence against this Schedule; or
(b) an ancillary offence relating this Schedule;
to have been engaged in also by the body corporate unless the body
corporate establishes that the body corporate took reasonable
precautions and exercised due diligence to avoid the conduct.
Person other than a body corporate
(3) If, in proceedings for an ancillary offence relating to this Schedule,
it is necessary to establish the state of mind of a person other than a
body corporate in relation to particular conduct, it is sufficient to
show:
(a) that the conduct was engaged in by an employee or agent of
the person within the scope of his or her actual or apparent
authority; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 7 Offences
Clause 87
172 Broadcasting Services Act 1992
(b) that the employee or agent had the state of mind.
(4) Any conduct engaged in on behalf of a person other than a body
corporate by an employee or agent of the person within the scope
of his or her actual or apparent authority is taken, for the purposes
of a prosecution for:
(a) an offence against this Schedule; or
(b) an ancillary offence relating this Schedule;
to have been engaged in also by the first-mentioned person unless
the first-mentioned person establishes that the first-mentioned
person took reasonable precautions and exercised due diligence to
avoid the conduct.
(5) If:
(a) a person other than a body corporate is convicted of an
offence; and
(b) the person would not have been convicted of the offence if
subclauses (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that
offence.
State of mind
(6) A reference in subclause (1) or (3) to the state of mind of a person
includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the
person; and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
Director
(7) A reference in this clause to a director of a body corporate includes
a reference to a constituent member of a body corporate
incorporated for a public purpose by a law of the Commonwealth,
a State or a Territory.
Engaging in conduct
(8) A reference in this clause to engaging in conduct includes a
reference to failing or refusing to engage in conduct.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Offences Part 7
Clause 87
Broadcasting Services Act 1992 173
Ancillary offence relating to this Schedule
(9) A reference in this clause to an ancillary offence relating to this
Schedule is a reference to an offence created by section 6 of the
Crimes Act 1914 or Part 2.4 of the Criminal Code that relates to
this Schedule.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 8 Protection from civil and criminal proceedings
Clause 88
174 Broadcasting Services Act 1992
Part 8—Protection from civil and criminal
proceedings
88 Protection from civil proceedings—internet service providers
(1) Civil proceedings do not lie against an internet service provider in
respect of anything done by the provider in compliance with:
(a) a code registered under Part 5 of this Schedule; or
(b) a standard determined under Part 5 of this Schedule;
in so far as the code or standard deals with procedures referred to
in paragraph 60(2)(d) of this Schedule.
(2) Civil proceedings do not lie against an internet service provider in
respect of anything done by the provider in compliance with
clause 48.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Operation of State and Territory laws etc. Part 9
Clause 90
Broadcasting Services Act 1992 175
Part 9—Operation of State and Territory laws etc.
90 Concurrent operation of State and Territory laws
It is the intention of the Parliament that this Schedule is not to
apply to the exclusion of a law of a State or Territory to the extent
to which that law is capable of operating concurrently with this
Schedule.
91 Liability of internet content hosts and internet service providers
under State and Territory laws etc.
(1) A law of a State or Territory, or a rule of common law or equity,
has no effect to the extent to which it:
(a) subjects, or would have the effect (whether direct or indirect)
of subjecting, an internet content host to liability (whether
criminal or civil) in respect of hosting particular internet
content in a case where the host was not aware of the nature
of the internet content; or
(b) requires, or would have the effect (whether direct or indirect)
of requiring, an internet content host to monitor, make
inquiries about, or keep records of, internet content hosted by
the host; or
(c) subjects, or would have the effect (whether direct or indirect)
of subjecting, an internet service provider to liability
(whether criminal or civil) in respect of carrying particular
internet content in a case where the service provider was not
aware of the nature of the internet content; or
(d) requires, or would have the effect (whether direct or indirect)
of requiring, an internet service provider to monitor, make
inquiries about, or keep records of, internet content carried
by the provider.
(2) The Minister may, by legislative instrument, exempt a specified
law of a State or Territory, or a specified rule of common law or
equity, from the operation of subclause (1).
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 9 Operation of State and Territory laws etc.
Clause 91
176 Broadcasting Services Act 1992
(3) An exemption under subclause (2) may be unconditional or subject
to such conditions (if any) as are specified in the exemption.
Declaration by Minister
(4) The Minister may, by legislative instrument, declare that a
specified law of a State or Territory, or a specified rule of common
law or equity, has no effect to the extent to which the law or rule
has a specified effect in relation to an internet content host.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(5) The Minister may, by legislative instrument, declare that a
specified law of a State or Territory, or a specified rule of common
law or equity, has no effect to the extent to which the law or rule
has a specified effect in relation to an internet service provider.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(6) A declaration under subclause (4) or (5) has effect only to the
extent that:
(a) it is authorised by paragraph 51(v) of the Constitution (either
alone or when read together with paragraph 51(xxxix) of the
Constitution); or
(b) both:
(i) it is authorised by section 122 of the Constitution; and
(ii) it would have been authorised by paragraph 51(v) of the
Constitution (either alone or when read together with
paragraph 51(xxxix) of the Constitution) if section 51 of
the Constitution extended to the Territories.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Review of decisions Part 10
Clause 92
Broadcasting Services Act 1992 177
Part 10—Review of decisions
92 Review by the AAT
(1) An application may be made to the AAT for a review of any of the
following decisions made by the ACMA:
(e) a decision to give an internet service provider a standard
access-prevention notice;
(f) a decision to give an internet service provider a special
access-prevention notice;
(g) a decision under clause 66 or 83 to:
(i) give a direction to an internet service provider; or
(ii) vary a direction that is applicable to an internet service
provider; or
(iii) refuse to revoke a direction that is applicable to an
internet service provider;
(h) a decision of a kind referred to in subclause 80(7) (which
deals with decisions under online provider determinations),
where the decision relates to an internet service provider.
(2) An application under subclause (1) may only be made by the
internet service provider concerned.
(3) An application may be made to the AAT for a review of a decision
of the ACMA under clause 62 to refuse to register a code.
(4) An application under subclause (3) may only be made by the body
or association that developed the code.
93 Notification of decisions to include notification of reasons and
appeal rights
If the ACMA makes a decision that is reviewable under clause 92,
the ACMA is to include in the document by which the decision is
notified:
(a) a statement setting out the reasons for the decision; and
(b) a statement to the effect that an application may be made to
the AAT for a review of the decision.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 5 Online services
Part 11 Miscellaneous
Clause 94
178 Broadcasting Services Act 1992
Part 11—Miscellaneous
94 Additional ACMA functions
The ACMA has the following functions:
(a) to monitor compliance with codes and standards registered
under Part 5 of this Schedule;
(b) to advise and assist parents and responsible adults in relation
to the supervision and control of children’s access to internet
content;
(c) to conduct and/or co-ordinate community education
programs about internet content and internet carriage
services, in consultation with relevant industry and consumer
groups and government agencies;
(d) to conduct and/or commission research into issues relating to
internet content and internet carriage services;
(e) to liaise with regulatory and other relevant bodies overseas
about co-operative arrangements for the regulation of the
internet industry, including (but not limited to) collaborative
arrangements to develop:
(i) multilateral codes of practice; and
(ii) internet content labelling technologies;
(f) to inform itself and advise the Minister on technological
developments and service trends in the internet industry.
95 Review before 1 January 2003
(1) Before 1 January 2003, the Minister must cause to be conducted a
review of the operation of this Schedule.
(2) The following matters are to be taken into account in conducting a
review under subclause (1):
(a) the general development of internet content filtering
technologies;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Online services Schedule 5
Miscellaneous Part 11
Clause 96
Broadcasting Services Act 1992 179
(b) whether internet content filtering technologies have
developed to a point where it is practicable to use those
technologies to prevent end-users from accessing R-rated
information hosted outside Australia that is not subject to a
restricted access system;
(c) any other relevant matters.
(3) The Minister must cause to be prepared a report of a review under
subclause (1).
(4) The Minister must cause copies of the report to be laid before each
House of the Parliament within 15 sitting days of that House after
the completion of the preparation of the report.
(5) The Parliament acknowledges the Government’s policy intention
that, in the event that internet content filtering technologies
develop to a point where it is practicable to use those technologies
to prevent end-users from accessing R-rated information hosted
outside Australia that is not subject to a restricted access system,
legislation will be introduced into the Parliament to:
(a) extend subclause 10(1) to internet content hosted outside
Australia; and
(b) repeal subclause 10(2).
96 Schedule not to affect performance of State or Territory
functions
A power conferred by this Schedule must not be exercised in such
a way as to prevent the exercise of the powers, or the performance
of the functions, of government of a State, the Northern Territory,
the Australian Capital Territory or Norfolk Island.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 1 Introduction
Clause 1
180 Broadcasting Services Act 1992
Schedule 6—Datacasting services Note: See section 216c.
Part 1—Introduction
1 Simplified outline
The following is a simplified outline of this Schedule:
• This Schedule sets up a system for regulating the provision of
datacasting services.
• A person who provides a designated datacasting service must
hold a datacasting licence.
• Datacasting content will be subject to restrictions. Those
restrictions are designed to encourage datacasting licensees to
provide a range of innovative services that are different to
traditional broadcasting services.
• The main restrictions on datacasting content are as follows:
(a) restrictions on the provision of certain genres of
television programs;
(b) restrictions on the provision of audio content.
• Datacasting licensees (other than restricted datacasting
licensees) will be allowed to provide the following types of
content:
(a) information-only programs (including matter that
enables people to carry out transactions);
(b) educational programs;
(c) interactive computer games;
(d) content in the form of text or still visual images;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Introduction Part 1
Clause 2
Broadcasting Services Act 1992 181
(e) Parliamentary broadcasts;
(f) ordinary electronic mail;
(g) internet content.
• Restricted datacasting licensees will not be allowed to provide
content in a form that is specified in a legislative instrument
made by the Minister.
• A group that represents datacasting licensees may develop
codes of practice.
• The ACMA has a reserve power to make a standard if there
are no codes of practice or if a code of practice is deficient.
• The ACMA is to investigate complaints about datacasting
licensees.
2 Definitions
(1) In this Schedule, unless the contrary intention appears:
advertising or sponsorship material means advertising or
sponsorship material (whether or not of a commercial kind).
Classification Board means the Classification Board established
by the Classification (Publications, Films and Computer Games)
Act 1995.
compilation program means a program that consists of video clips
or other matter edited together to form a structured program, where
there is a heavy emphasis on entertainment value.
declared internet carriage service has the meaning given by
clause 23B.
designated datacasting service has the meaning given by
clause 2A.
drama program has the same meaning as in section 103B.
educational program has the meaning given by clause 3.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 1 Introduction
Clause 2
182 Broadcasting Services Act 1992
engage in conduct (except in clause 55 or 56) means:
(a) do an act; or
(b) omit to perform an act.
financial, market or business information bulletin means a
bulletin the sole or dominant purpose of which is to provide
information, analysis, commentary or discussion in relation to
financial, market or business matters.
foreign-language news or current affairs program has the
meaning given by clause 5.
information-only program has the meaning given by clause 4.
infotainment or lifestyle program means a program the sole or
dominant purpose of which is to present factual information in an
entertaining way, where there is a heavy emphasis on
entertainment value.
interactive computer game means a computer game, where:
(a) the way the game proceeds, and the result achieved at various
stages of the game, is determined in response to the
decisions, inputs and direct involvement of the player; and
(b) a part of the software that enables end-users to play the game
is under the control of the datacasting licensee concerned.
internet carriage service has the same meaning as in Schedule 5,
but does not include a service that transmits content that has been
copied from the internet, where the content is selected by the
datacasting licensee concerned.
music program means a program the sole or dominant purpose of
which is to provide:
(a) music with video clips; or
(b) video footage of musical performances;
or both.
news or current affairs program means any of the following:
(a) a news bulletin;
(b) a sports news bulletin;
(c) a program (whether presenter-based or not) whose sole or
dominant purpose is to provide analysis, commentary or
discussion principally designed to inform the general
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Introduction Part 1
Clause 2
Broadcasting Services Act 1992 183
community about social, economic or political issues of
current relevance to the general community.
nominated datacaster declaration means a declaration under
clause 45.
ordinary electronic mail does not include a posting to a
newsgroup.
qualified entity means:
(a) a company that:
(i) is registered under Part 2A.2 of the Corporations Act
2001; and
(ii) has a share capital; or
(b) the Commonwealth, a State or a Territory; or
(c) the Australian Broadcasting Corporation; or
(d) the Special Broadcasting Service Corporation; or
(e) any other body corporate established for a public purpose by
a law of the Commonwealth or of a State or Territory.
“reality television” program means a program the sole or
dominant purpose of which is to depict actual, contemporary
events, people or situations in a dramatic or entertaining way,
where there is a heavy emphasis on dramatic impact or
entertainment value.
related body corporate has the same meaning as in the
Corporations Act 2001.
sports program means a program the sole or dominant purpose of
which is to provide:
(a) coverage of one or more sporting events; or
(b) analysis, commentary or discussion in relation to one or more
sporting events;
or both, but does not include a sports news bulletin.
transmitter licence has the same meaning as in the
Radiocommunications Act 1992.
(2) In determining the meaning of an expression used in a provision of
this Act (other than this Schedule), this clause is to be disregarded.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 1 Introduction
Clause 2A
184 Broadcasting Services Act 1992
2A Designated datacasting service
(1) For the purposes of this Schedule, a designated datacasting service
is a datacasting service that:
(a) is provided by a person who is:
(i) a commercial television broadcasting licensee; or
(ii) a commercial radio broadcasting licensee; or
(iii) a national broadcaster; or
(b) is of a kind specified in an instrument under subclause (2).
(2) The Minister may, by legislative instrument, specify kinds of
datacasting services for the purposes of paragraph (1)(b).
3 Educational programs
(1) For the purposes of this Schedule, an educational program is
matter, where, having regard to:
(a) the substance of the matter; and
(b) the way in which the matter is advertised or promoted; and
(c) any other relevant matters;
it would be concluded that the sole or dominant purpose of the
matter is to assist a person in education or learning, whether or not
in connection with a course of study or instruction.
(2) Subclause (1) has effect subject to subclauses (3) and (4).
ACMA determinations
(3) The ACMA may make a written determination providing that, for
the purposes of this Schedule, specified matter is taken to be an
educational program.
(4) The ACMA may make a written determination providing that, for
the purposes of this Schedule, specified matter is taken not to be an
educational program.
(5) A determination under subclause (3) or (4) has effect accordingly.
(6) A determination under subclause (3) or (4) is to be an instrument of
a legislative character.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Introduction Part 1
Clause 4
Broadcasting Services Act 1992 185
(7) A determination under subclause (3) or (4) is a disallowable
instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
4 Information-only programs
(1) For the purposes of this Schedule, an information-only program is
matter the sole or dominant purpose of which is to:
(a) provide factual information, or directly-related comment,
about any of a wide range of matters, including but not
limited to any of the following:
(i) products;
(ii) services;
(iii) community activities;
(iv) domestic or household matters;
(v) private recreational pursuits or hobbies;
(vi) legal rights, obligations or responsibilities;
(vii) first aid, health or safety matters;
(viii) emergencies or natural disasters;
(ix) rural matters;
(x) travel matters;
(xi) crime prevention matters; or
(b) enable and/or facilitate the carrying out and/or completion of
transactions;
or both, where there is not a significant emphasis on dramatic
impact or entertainment.
(2) Subclause (1) has effect subject to subclauses (3) and (4).
ACMA determinations
(3) The ACMA may make a written determination providing that, for
the purposes of this Schedule, specified matter is taken to be an
information-only program.
(4) The ACMA may make a written determination providing that, for
the purposes of this Schedule, specified matter is taken not to be an
information-only program.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 1 Introduction
Clause 4
186 Broadcasting Services Act 1992
(5) A determination under subclause (3) or (4) has effect accordingly.
(6) A determination under subclause (3) or (4) is to be an instrument of
a legislative character.
(7) A determination under subclause (3) or (4) is a disallowable
instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
Definitions
(8) In this clause:
community activity means:
(a) a meeting, event, performance or other activity that can be
attended by:
(i) the public; or
(ii) a section of the public; or
(iii) members of a particular club, society or organisation; or
(b) the activity of visiting an institution, a tourist attraction or
other place;
whether on payment of a charge or otherwise.
product includes real property.
services means any services, benefits, rights, privileges or facilities
that are capable of being provided, granted or conferred:
(a) in trade or commerce; or
(b) by a government or government authority; or
(c) in any other way.
transactions includes:
(a) commercial transactions; and
(b) banking transactions; and
(c) insurance transactions; and
(d) dealings about employment matters; and
(e) dealings with governments and government authorities.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Introduction Part 1
Clause 5
Broadcasting Services Act 1992 187
5 Foreign-language news or current affairs programs
(1) For the purposes of this Schedule, a foreign-language news or
current affairs program means a news or current affairs program
that is wholly in a language other than English.
(2) For the purposes of subclause (1), disregard minor and infrequent
uses of the English language.
(3) For the purposes of subclause (1), disregard any English language
subtitles or captioning.
6 Datacasting content is taken not to be a television program or a
radio program etc.
For the purposes of this Act (other than Divisions 1 and 2 of Part 3
of this Schedule) and any other law of the Commonwealth (other
than the Tobacco Advertising Prohibition Act 1992), if a
datacasting service is provided under, and in accordance with the
conditions of, a datacasting licence:
(a) any matter provided on that service is taken not to be a
television program or a radio program; and
(b) any matter provided on that service is taken not to be
broadcast or televised; and
(c) that service is taken not to be a broadcasting service, a
television service or a radio service.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 2 Datacasting licences
Clause 7
188 Broadcasting Services Act 1992
Part 2—Datacasting licences
7 Allocation of datacasting licence
(1) The ACMA may allocate a datacasting licence to a person, on
written application by the 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.
(3) An application under subsection (1) may be expressed to be an
application for a restricted datacasting licence.
8 When datacasting licence must not be allocated
(1) A datacasting licence is not to be allocated to an applicant if:
(a) the applicant is not a qualified entity; or
(b) the ACMA decides that subclause 9(1) applies to the
applicant.
(2) The ACMA may refuse to allocate a datacasting licence to an
applicant if a datacasting licence held by the applicant, or by a
related body corporate of the applicant, was cancelled at any time
during the previous 12 months.
(3) Paragraph (1)(b) does not require the ACMA to consider the
application of clause 9 in relation to an applicant before allocating
a licence to the applicant.
9 Unsuitable applicant
(1) The ACMA may, if it is satisfied that allowing a particular person
to provide a datacasting service under a datacasting 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
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Datacasting licences Part 2
Clause 10
Broadcasting Services Act 1992 189
(b) a breach of the conditions of the licence occurring;
decide that this subclause applies to the person.
(2) In deciding whether such a risk exists, the ACMA is to take into
account:
(a) the business record of the person; and
(b) the person’s record in situations requiring trust and candour;
and
(c) the business record of each person who would be, if a
datacasting licence were allocated to the first-mentioned
person, in a position to control the licence; and
(d) the record in situations requiring trust and candour of each
such person; and
(e) whether the first-mentioned person, 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 first-mentioned person; or
(ii) a person referred to in paragraph (c) or (d).
(3) This clause 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).
10 Transfer of datacasting licences
(1) A datacasting licensee may transfer the licence to another qualified
entity.
(2) A transferee of a datacasting licence must, within 7 days after the
transfer, notify the ACMA of the transfer.
Penalty: 50 penalty units.
(2A) Subclause (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A notification must be in accordance with a form approved in
writing by the ACMA.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 2 Datacasting licences
Clause 11
190 Broadcasting Services Act 1992
11 Surrender of datacasting licences
A datacasting licensee may, by written notice given to the ACMA,
surrender the licence.
12 ACMA to maintain Register of datacasting licences that are not
restricted datacasting licences
(1) The ACMA is to maintain a Register in which the ACMA
includes:
(a) particulars of datacasting licences (other than restricted
datacasting licences); and
(b) such information about transmitter licences as the ACMA
determines.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
12A ACMA to maintain Register of restricted datacasting licences
(1) The ACMA is to maintain a Register in which the ACMA includes
particulars of restricted datacasting licences.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Conditions of datacasting licences Part 3
Genre conditions Division 1
Clause 13
Broadcasting Services Act 1992 191
Part 3—Conditions of datacasting licences
Division 1—Genre conditions
13 Category A television programs
(1) For the purposes of this Division, each of the following television
programs is a category A television program:
(a) a drama program;
(c) a sports program;
(d) a music program;
(e) an infotainment or lifestyle program;
(f) a documentary program;
(g) a ―reality television‖ program;
(h) a children’s entertainment program;
(i) a light entertainment or variety program;
(j) a compilation program;
(k) a quiz or games program;
(l) a comedy program;
(m) a program that consists of a combination of any or all of the
above programs.
(2) Subclause (1) has effect subject to subclauses (3), (4) and (5).
(3) For the purposes of this Division, neither of the following
television programs is a category A television program:
(a) an information-only program;
(b) an educational program.
ACMA genre determinations
(4) The ACMA may make a written determination providing that, for
the purposes of this Division, a specified television program or
specified matter is taken to be a category A television program
covered by a specified paragraph of subclause (1).
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 3 Conditions of datacasting licences
Division 1 Genre conditions
Clause 14
192 Broadcasting Services Act 1992
(5) The ACMA may make a written determination providing that, for
the purposes of this Division, a specified television program or
specified matter is taken not to be a category A television program
covered by a specified paragraph of subclause (1).
(6) A determination under subclause (4) or (5) has effect accordingly.
(7) A determination under subclause (4) or (5) is to be an instrument of
a legislative character.
(8) A determination under subclause (4) or (5) is a disallowable
instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
14 Condition relating to category A television programs
(1) Each datacasting licence is subject to the condition that the licensee
will not transmit matter that, if it were broadcast on a commercial
television broadcasting service, would be:
(a) a category A television program; or
(b) an extract from a category A television program.
(2) The condition set out in subclause (1) does not prevent the licensee
from transmitting an extract from a category A television program,
so long as:
(a) the extract is not longer than 10 minutes; and
(c) the extract is not combined with one or more other extracts
from category A television programs in such a way that the
extracts together constitute the whole or a majority of a
particular category A television program; and
(d) having regard to:
(i) the nature of the extract; and
(ii) the circumstances in which the extract is provided;
it would be concluded that the licensee did not intend that the
extract be combined with one or more other extracts from
category A television programs in such a way that the
extracts together constitute the whole or a majority of a
particular category A television program.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Conditions of datacasting licences Part 3
Genre conditions Division 1
Clause 15
Broadcasting Services Act 1992 193
(3) A reference in subclause (2) to a category A television program is
a reference to matter that is covered by subclause (1) because of
paragraph (1)(a).
(4) A reference in subclause (2) to an extract from a category A
television program is a reference to matter that is covered by
subclause (1) because of paragraph (1)(b).
(5) If, because of subclause (2) of this clause, a datacasting licensee
can transmit matter without breaching the condition set out in
subclause (1) of this clause, the condition set out in subclause 16(1)
does not prevent the licensee from transmitting that matter.
15 Category B television programs
(1) For the purposes of this Division, each of the following television
programs is a category B television program:
(a) a news or current affairs program;
(b) a financial, market or business information bulletin;
(c) a weather bulletin;
(d) a bulletin or program that consists of a combination of any or
all of the above bulletins or programs.
(2) Subclause (1) has effect subject to subclauses (3), (4) and (5).
(3) For the purposes of this Division, none of the following television
programs is a category B television program:
(a) an information-only program;
(b) an educational program;
(c) a foreign-language news or current affairs program.
ACMA genre determinations
(4) The ACMA may make a written determination providing that, for
the purposes of this Division, a specified television program or
specified matter is taken to be a category B television program
covered by a specified paragraph of subclause (1).
(5) The ACMA may make a written determination providing that, for
the purposes of this Division, a specified television program or
specified matter is taken not to be a category B television program
covered by a specified paragraph of subclause (1).
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 3 Conditions of datacasting licences
Division 1 Genre conditions
Clause 16
194 Broadcasting Services Act 1992
(6) A determination under subclause (4) or (5) has effect accordingly.
(7) A determination under subclause (4) or (5) is to be an instrument of
a legislative character.
(8) A determination under subclause (4) or (5) is a disallowable
instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
16 Condition relating to category B television programs
(1) Each datacasting licence is subject to the condition that the licensee
will not transmit matter that, if it were broadcast on a commercial
television broadcasting service, would be:
(a) a category B television program; or
(b) an extract from a category B television program.
(2) The condition set out in subclause (1) does not prevent the licensee
from transmitting a bulletin, or program, (whether presenter-based
or not), so long as:
(a) the bulletin or program is not longer than 10 minutes; and
(b) if:
(i) an earlier bulletin or program covered by subclause (1)
was transmitted by the licensee; and
(ii) the content of the first-mentioned bulletin or program
differs in any respect from the content of the earlier
bulletin or program;
the interval between the start of the transmission of the
earlier bulletin or program and the start of the transmission of
the first-mentioned bulletin or program is at least 30 minutes;
and
(c) the bulletin or program is not combined with one or more
other bulletins or programs in such a way that the bulletins or
programs together constitute a bulletin or program longer
than 10 minutes; and
(d) having regard to:
(i) the nature of the bulletin or program; and
(ii) the circumstances in which the bulletin or program is
provided;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Conditions of datacasting licences Part 3
Genre conditions Division 1
Clause 17
Broadcasting Services Act 1992 195
it would be concluded that the licensee did not intend that the
bulletin or program be combined with one or more other
bulletins or programs in such a way that the bulletins or
programs together constitute a bulletin or program longer
than 10 minutes.
(3) The condition set out in subclause (1) does not prevent the licensee
from transmitting a bulletin or program, so long as:
(a) the bulletin or program is not a presenter-based bulletin or
program; and
(b) one of the following applies:
(i) the bulletin or program consists of a single item of news
(including a single item of sports news);
(ii) the bulletin or program is a financial, market or business
information bulletin or program that deals with a single
topic;
(iia) the bulletin or program is a compilation of items, the
subject of which is the same or directly related, and is
not longer than 10 minutes;
(iii) the bulletin or program is a weather bulletin or program;
and
(c) the bulletin or program can only be accessed by an end-user
who makes a selection from an on-screen menu.
(4) In this clause:
presenter-based bulletin or program means a bulletin or program
that consists of, or includes, a combination of:
(a) introductory or closing segments, or both, spoken by a host,
or an anchor presenter, who is visible on the screen; and
(b) video images (whether or not with accompanying sound).
(5) If, because of subclause (2) or (3) of this clause, a datacasting
licensee can transmit matter without breaching the condition set
out in subclause (1) of this clause, the condition set out in
subclause 14(1) does not prevent the licensee from transmitting
that matter.
17 Genre conditions do not apply to Parliamentary proceedings etc.
The conditions set out in clauses 14 and 16 do not prevent a
datacasting licensee from transmitting live matter that consists of:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 3 Conditions of datacasting licences
Division 1 Genre conditions
Clause 18
196 Broadcasting Services Act 1992
(a) the proceedings of, or the proceedings of a committee of, a
Parliament; or
(b) the proceedings of a court or tribunal in Australia; or
(c) the proceedings of an official inquiry or Royal Commission
in Australia; or
(d) a hearing conducted by a body established for a public
purpose by a law of the Commonwealth or of a State or
Territory.
18 Genre conditions do not apply to matter that consists of no more
than text or still visual images etc.
(1) The conditions set out in clauses 14 and 16 do not prevent a
datacasting licensee from transmitting matter that consists of no
more than:
(a) text; or
(b) text accompanied by associated sounds; or
(c) still visual images; or
(d) still visual images accompanied by associated sounds; or
(e) any combination of matter covered by the above paragraphs;
or
(f) any combination of:
(i) matter that is covered by any of the above
paragraphs (the basic matter); and
(ii) animated images (with or without associated sounds);
where:
(iii) having regard to the substance of the animated images,
it would be concluded that the animated images are
ancillary or incidental to the basic matter; or
(iv) the animated images consist of advertising or
sponsorship material.
(2) In determining the meaning of the expressions television or
television program, when used in a provision of this Act,
subclause (1) is to be disregarded.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Conditions of datacasting licences Part 3
Genre conditions Division 1
Clause 18A
Broadcasting Services Act 1992 197
18A Genre conditions do not apply to advertising or sponsorship
material
The conditions set out in clauses 14 and 16 do not prevent a
datacasting licensee from transmitting advertising or sponsorship
material.
19 Genre conditions do not apply to interactive computer games
(1) The conditions set out in clauses 14 and 16 do not prevent a
datacasting licensee from providing an interactive computer game.
(2) In determining the meaning of the expressions television or
television program, when used in a provision of this Act,
subclause (1) is to be disregarded.
20 Genre conditions do not apply to internet carriage services or
ordinary electronic mail
(1) The conditions set out in clauses 14 and 16 do not apply to:
(a) the transmission of so much of a datacasting service as
consists of an internet carriage service (other than a declared
internet carriage service); or
(b) the transmission of ordinary electronic mail.
(2) In determining the meaning of the expressions television or
television program, when used in a provision of this Act,
subclause (1) is to be disregarded.
20AA Genre conditions do not apply to certain content copied from
the internet
(1) The conditions set out in clauses 14 and 16 do not apply to the
transmission of matter if:
(a) the matter is content that has been copied from the internet;
and
(b) the content is selected by the datacasting licensee concerned;
and
(c) there is in force an exemption order under subclause 27A(1)
in relation to the transmission of the matter.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 3 Conditions of datacasting licences
Division 1 Genre conditions
Clause 20AA
198 Broadcasting Services Act 1992
(2) In determining the meaning of the expressions television or
television program, when used in a provision of this Act,
subclause (1) is to be disregarded.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Conditions of datacasting licences Part 3
Audio content condition Division 2
Clause 21
Broadcasting Services Act 1992 199
Division 2—Audio content condition
21 Audio content condition
(1) Each datacasting licence is subject to the condition that the licensee
will not transmit matter that, if it were broadcast on a commercial
radio broadcasting service, would be a designated radio program.
Designated radio program
(2) For the purposes of this clause, a designated radio program is a
radio program other than:
(a) an information-only program; or
(b) an educational program; or
(c) a foreign-language news or current affairs program.
(3) Subclause (2) has effect subject to subclauses (4) and (5).
ACMA determinations
(4) The ACMA may make a written determination providing that, for
the purposes of this clause, a specified radio program or specified
matter is taken to be a designated radio program.
(5) The ACMA may make a written determination providing that, for
the purposes of this clause, a specified radio program or specified
matter is taken not to be a designated radio program.
(6) A determination under subclause (4) or (5) has effect accordingly.
(7) A determination under subclause (4) or (5) is to be an instrument of
a legislative character.
(8) A determination under subclause (4) or (5) is a disallowable
instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 3 Conditions of datacasting licences
Division 2 Audio content condition
Clause 22
200 Broadcasting Services Act 1992
Condition does not apply to incidental or background audio
content
(8A) The condition set out in subclause (1) does not apply to the
transmission of audio content that is incidental to, or provided as
background to, matter displayed on the screen.
Condition does not apply to internet carriage services
(9) The condition set out in subclause (1) does not apply to the
transmission of so much of a datacasting service as consists of an
internet carriage service (other than a declared internet carriage
service).
Condition does not apply to certain content copied from the
internet
(10) The condition set out in subclause (1) does not apply to the
transmission of matter if:
(a) the matter is content that has been copied from the internet;
and
(b) the content is selected by the datacasting licensee concerned;
and
(c) there is in force an exemption order under subclause 27A(1)
in relation to the transmission of the matter.
22 Audio content condition does not apply to Parliamentary
proceedings etc.
The condition set out in clause 21 does not prevent a datacasting
licensee from transmitting live audio content that consists of:
(a) the proceedings of, or the proceedings of a committee of, a
Parliament; or
(b) the proceedings of a court or tribunal in Australia; or
(c) the proceedings of an official inquiry or Royal Commission
in Australia; or
(d) a hearing conducted by a body established for a public
purpose by a law of the Commonwealth or of a State or
Territory.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Conditions of datacasting licences Part 3
Audio content condition Division 2
Clause 23
Broadcasting Services Act 1992 201
23 Audio content condition does not apply to matter that consists of
no more than text or still visual images etc.
(1) The condition set out in clause 21 does not prevent a datacasting
licensee from transmitting matter that consists of no more than:
(a) text; or
(b) text accompanied by associated sounds; or
(c) still visual images; or
(d) still visual images accompanied by associated sounds; or
(e) any combination of matter covered by the above paragraphs;
or
(f) any combination of:
(i) matter that is covered by any of the above
paragraphs (the basic matter); and
(ii) animated images (with or without associated sounds);
where:
(iii) having regard to the substance of the animated images,
it would be concluded that the animated images are
ancillary or incidental to the basic matter; or
(iv) the animated images consist of advertising or
sponsorship material.
(2) In determining the meaning of the expressions radio or radio
program, when used in a provision of this Act, subclause (1) is to
be disregarded.
23A Audio content condition does not apply to advertising or
sponsorship material
The condition set out in clause 21 does not prevent a datacasting
licensee from transmitting advertising or sponsorship material.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 3 Conditions of datacasting licences
Division 2A Genre conditions: anti-avoidance
Clause 23B
202 Broadcasting Services Act 1992
Division 2A—Genre conditions: anti-avoidance
23B Anti-avoidance—declared internet carriage services
(1) If:
(a) the whole or a part of a datacasting service provided under a
datacasting licence consists of an internet carriage service;
and
(b) one or more persons enter into, begin to carry out, or carry
out, a scheme; and
(c) the ACMA is of the opinion that the person, or any of the
persons, who entered into, began to carry out, or carried out,
the scheme did so for the sole or dominant purpose of
avoiding the application to the licensee of Division 1 or 2;
the ACMA may, by writing, determine that, for the purposes of the
application of this Schedule to the licensee, the internet carriage
service is a declared internet carriage service.
(2) The person, or any of the persons, referred to in paragraphs (1)(b)
and (c) may be the licensee.
(3) A determination under subclause (1) has effect accordingly.
(4) In this clause:
scheme means:
(a) any agreement, arrangement, understanding, promise or
undertaking, whether express or implied and whether or not
enforceable, or intended to be enforceable, by legal
proceedings; or
(b) any scheme, plan, proposal, action, course of action or course
of conduct, whether there are 2 or more parties or only one
party involved.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Conditions of datacasting licences Part 3
Other conditions Division 3
Clause 24
Broadcasting Services Act 1992 203
Division 3—Other conditions
24 General conditions
(1) Each datacasting licence is subject to the following conditions:
(a) the licensee will comply with the requirements of clauses 3,
3A, 4, 5 and 6 of Schedule 2 (as modified by subclause (4) of
this clause);
(b) the licensee will not, in contravention of the Tobacco
Advertising Prohibition Act 1992, transmit a tobacco
advertisement within the meaning of that Act;
(c) the licensee will comply with standards applicable to the
licence under clause 31;
(ca) if the licence is not a restricted datacasting licence—the
licensee will comply with any standards under section 130A
(which deals with technical standards for digital
transmission);
(d) the licensee will not use the datacasting service in the
commission of an offence against another Act or a law of a
State or Territory;
(e) the licensee will not transmit datacasting content that has
been classified as RC or X 18+ by the Classification Board;
(f) the licensee will not transmit datacasting content that has
been classified R 18+ by the Classification Board unless:
(i) the content has been modified as mentioned in
paragraph 28(4)(b); or
(ii) access to the program is subject to a restricted access
system (within the meaning of clause 27);
(g) the licensee will comply with subsection 130V(1) (which
deals with industry standards);
(h) if the whole or a part of the datacasting service consists of an
internet carriage service—the licensee will comply with an
online provider rule (within the meaning of Schedule 5) that
is applicable to the licensee in relation to the internet carriage
service;
(i) if the licence is not a restricted datacasting licence—the
licensee will not use the part of the radiofrequency spectrum
covered by paragraph (b) of the definition of broadcasting
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 3 Conditions of datacasting licences
Division 3 Other conditions
Clause 24
204 Broadcasting Services Act 1992
services bands in subsection 6(1) to provide a datacasting
service under the licence.
(2) The conditions set out in paragraphs (1)(a), (c), (e) and (f) do not
apply in relation to:
(a) the transmission of so much of a datacasting service as
consists of an internet carriage service; or
(b) the transmission of ordinary electronic mail.
(3) The condition set out in paragraph (1)(b) does not apply in relation
to the transmission of ordinary electronic mail.
(4) Clauses 3, 3A, 4, 5 and 6 of Schedule 2 apply to datacasting
services provided under datacasting licences in a corresponding
way to the way in which those clauses apply to broadcasting
services, and, in particular, those clauses have effect as if:
(a) a reference in those clauses to a person providing
broadcasting services under a class licence included a
reference to a person who is a datacasting licensee; and
(b) a reference in those clauses to a broadcasting service
included a reference to a datacasting service; and
(c) a reference in those clauses to broadcast included a reference
to provide on a datacasting service; and
(d) subclause 4(2) of Schedule 2 were not applicable to political
matter provided under a datacasting licence, where the
political matter consists of no more than:
(i) text; or
(ii) still visual images; or
(iii) any combination of matter covered by the above
subparagraphs; and
(e) clause 4 of Schedule 2 also provided that, if a datacasting
licensee provides on a datacasting service, at the request of
another person, political matter that consists of no more than:
(i) text; or
(ii) still visual images; or
(iii) any combination of matter covered by the above
subparagraphs;
the licensee must also cause to be displayed to end-users the
required particulars in relation to the political matter in a
form approved in writing by the ACMA.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Conditions of datacasting licences Part 3
Other conditions Division 3
Clause 24A
Broadcasting Services Act 1992 205
(5) Subclause (4) does not apply to:
(a) the transmission of so much of a datacasting service as
consists of an internet carriage service; or
(b) the transmission of ordinary electronic mail.
24A Special conditions for restricted datacasting licences
Each restricted datacasting licence is subject to the following
conditions:
(a) the datacasting content provided under the licence will be
transmitted using a digital modulation technique;
(b) if a form of datacasting content is specified in a legislative
instrument made by the Minister—the licensee will not
provide datacasting content in that form;
(c) the licensee will comply with any standards under
section 130AA (which deals with technical standards for
digital transmission).
25 Suitability condition
(1) Each datacasting licence is subject to the condition that the licensee
will remain a suitable licensee.
(2) For the purposes of this clause, a person is a suitable licensee if the
ACMA has not decided that subclause (3) applies to the person.
(3) The ACMA may, if it is satisfied that allowing a particular person
to provide, or continue to provide, datacasting services under a
datacasting licence would lead to a significant risk of:
(a) an offence against this Act or the regulations being
committed; or
(b) a breach of the conditions of the licence occurring;
decide that this subclause applies to the person.
(4) In deciding whether such a risk exists, the ACMA is to take into
account:
(a) the business record of the person; and
(b) the person’s record in situations requiring trust and candour;
and
(c) the business record of each person who is in a position to
control the licence; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 3 Conditions of datacasting licences
Division 3 Other conditions
Clause 26
206 Broadcasting Services Act 1992
(d) the record in situations requiring trust and candour of each
such person; and
(e) whether the first-mentioned person, or a person referred to in
paragraph (c) or (d), has been convicted of an offence against
this Act or the regulations.
(5) This clause 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).
26 Additional conditions imposed by the ACMA
(1) The ACMA may, by written notice given to a datacasting licensee:
(a) impose an additional condition on the licence; or
(b) vary or revoke a condition of the licence imposed under this
clause.
(2) If the ACMA proposes to vary or revoke a condition or to impose a
new condition, the ACMA must:
(a) give to the licensee written notice of its intention; and
(b) give to the licensee a reasonable opportunity to make
representations to the ACMA in relation to the proposed
action; and
(c) make the proposed changes available on the internet.
(3) Action taken under subclause (1) must not be inconsistent with
conditions set out in:
(a) clause 14; or
(b) clause 16; or
(c) clause 21; or
(d) clause 24; or
(e) clause 25.
(4) Conditions of datacasting licences varied or imposed by the
ACMA must be relevant to the datacasting services to which those
licences relate.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Conditions of datacasting licences Part 3
Other conditions Division 3
Clause 27
Broadcasting Services Act 1992 207
(5) Without limiting the range of conditions that may be imposed, the
ACMA may impose a condition on a datacasting 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.
ACMA to maintain Register of conditions
(6) The ACMA is to maintain a register in which it includes particulars
of:
(a) conditions imposed under this clause; and
(b) variations of conditions under this clause; and
(c) revocations of conditions under this clause.
(7) The Register may be maintained by electronic means.
(8) The Register is to be made available for inspection on the internet.
27 Restricted access system
(1) The ACMA may, by written instrument, declare that a specified
access-control system is a restricted access system for the purposes
of this Division. A declaration under this subclause has effect
accordingly.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
(2) In making an instrument under subclause (1), the ACMA must
have regard to:
(a) the objective of protecting children from exposure to matter
that is unsuitable for children; and
(b) such other matters (if any) as the ACMA considers relevant.
(3) An instrument under subclause (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act 1901.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 3 Conditions of datacasting licences
Division 4 Exemption orders for content copied from the internet
Clause 27A
208 Broadcasting Services Act 1992
Division 4—Exemption orders for content copied from the
internet
27A Exemption orders in relation to content copied from the
internet
(1) If the ACMA is satisfied that:
(a) matter is proposed to be transmitted by a datacasting
licensee; and
(b) the matter is content that is proposed to be copied from the
internet; and
(c) the content is proposed to be selected by the datacasting
licensee; and
(d) if it were assumed that clause 20AA and subclause 21(10)
had not been enacted:
(i) any breach of the conditions set out in clauses 14 and 16
and subclause 21(1) that would arise from the
transmission of the matter would be of a minor,
infrequent or incidental nature; or
(ii) the transmission of the matter would not be contrary to
the purpose of clauses 14, 16 and 21;
the ACMA may, by writing, make an exemption order in relation
to the transmission of the matter.
(2) If the ACMA receives a request from a datacasting licensee to
make an exemption order in relation to the transmission of matter
by the licensee, the ACMA must use its best endeavours to make
that decision within 28 days after the request was made.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Codes of practice Part 4
Clause 28
Broadcasting Services Act 1992 209
Part 4—Codes of practice
28 Development of codes of practice
(1) The Parliament intends that:
(a) a group that the ACMA is satisfied represents datacasting
licensees should develop codes of practice that are to be
applicable to the datacasting operations of datacasting
licensees; and
(b) those codes of practice should be developed:
(i) in consultation with the ACMA; and
(ii) taking account of any relevant research conducted by
the ACMA.
Content of codes of practice
(2) Codes of practice may relate to:
(a) preventing the transmission of matter that, in accordance
with community standards, is not suitable to be transmitted
by datacasting licensees; and
(b) methods of ensuring that the protection of children from
exposure to datacasting content which may be harmful to
them is a high priority; and
(c) methods of classifying datacasting content that reflect
community standards; and
(d) promoting accuracy and fairness in datacasting content that
consists of news or current affairs; and
(e) preventing the transmission of datacasting content that:
(i) simulates news or events in a way that misleads or
alarms end-users; or
(ii) depicts the actual process of putting a person into a
hypnotic state; or
(iii) is designed to induce a hypnotic state in end-users; or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 4 Codes of practice
Clause 28
210 Broadcasting Services Act 1992
(iv) uses or involves the process known as subliminal
perception or any other technique that attempts to
convey information to end-users by transmitting
messages below or near the threshold of normal
awareness; and
(f) datacasting content that consists of:
(i) advertising; or
(ii) sponsorship announcements; and
(g) methods of:
(i) handling complaints from the public about datacasting
content or compliance with codes of practice; and
(ii) reporting to the ACMA on complaints so made; and
(h) in a case where there are customers of datacasting
licensees—dealings with those customers, including methods
of billing, fault repair, privacy and credit management; and
(i) such other matters relating to datacasting content as are of
concern to the community.
Classification etc.
(3) In developing codes of practice relating to matters referred to in
paragraphs (2)(a) and (c), community attitudes to the following
matters are to be taken into account:
(a) the portrayal in datacasting content of physical and
psychological violence;
(b) the portrayal in datacasting content of sexual conduct and
nudity;
(c) the use in datacasting content of offensive language;
(d) the portrayal in datacasting content of the use of drugs,
including alcohol and tobacco;
(e) the portrayal in datacasting content of matter that is likely to
incite or perpetuate hatred against, or vilifies, any person or
group on the basis of ethnicity, nationality, race, gender,
sexual orientation, age, religion or physical or mental
disability;
(f) such other matters relating to datacasting content as are of
concern to the community.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Codes of practice Part 4
Clause 28
Broadcasting Services Act 1992 211
(4) In developing codes of practice referred to in paragraph (2)(a), (b)
or (c), the group that the ACMA is satisfied represents datacasting
licensees must ensure that:
(a) for the purpose of classifying films—those codes apply the
film classification system administered by the Classification
Board; and
(b) those codes provide for methods of modifying films having
particular classifications under that system so that the films
are suitable to be transmitted; and
(c) those codes provide for the provision of advice to consumers
on the reasons for films receiving a particular classification;
and
(d) for the purpose of classifying interactive computer games—
those codes apply the computer games classification system
administered by the Classification Board; and
(e) those codes provide for the provision of advice to consumers
on the reasons for interactive computer games receiving a
particular classification; and
(f) for the purpose of classifying content (other than films or
interactive computer games)—those codes apply the film
classification system administered by the Classification
Board in a corresponding way to the way in which that
system applies to films; and
(g) those codes provide for methods of modifying content (other
than films or interactive computer games) having particular
classifications under that system (as correspondingly applied)
so that the content is suitable to be transmitted; and
(h) those codes provide for the provision of advice to consumers
on the reasons for content (other than films or interactive
computer games) receiving a particular classification.
(5) In developing codes of practice referred to in paragraph (2)(a) or
(b), the group that the ACMA is satisfied represents datacasting
licensees must ensure that films classified as ―M‖ or ―MA 15+‖ do
not portray material that goes beyond the previous ―AO‖
classification criteria.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 4 Codes of practice
Clause 29
212 Broadcasting Services Act 1992
Registration of codes of practice
(6) If:
(a) the group that the ACMA is satisfied represents datacasting
licensees develops a code of practice to be observed in the
conduct of the datacasting operations of those licensees; and
(b) the ACMA is satisfied that:
(i) the code of practice provides appropriate community
safeguards for the matters covered by the code; and
(ii) the code is endorsed by a majority of datacasting
licensees; and
(iii) members of the public have been given an adequate
opportunity to comment on the code;
the ACMA must include that code in the Register of codes of
practice.
Interactive computer game
(7) In this clause:
interactive computer game includes a computer game within the
meaning of the Classification (Publications, Films and Computer
Games) Act 1995.
29 Review by the ACMA
(1) The ACMA must periodically conduct a review of the operation of
subclause 28(4) to see whether that subclause is in accordance with
prevailing community standards.
(2) If, after conducting such a review, the ACMA concludes that
subclause 28(4) is not in accordance with prevailing community
standards, the ACMA must recommend to the Minister appropriate
amendments to this Act that would ensure that subclause 28(4) is
in accordance with prevailing community standards.
(3) If the Minister receives a recommendation under subclause (2), the
Minister must cause a copy of the recommendation to be tabled in
each House of the Parliament within 15 sitting days of that House
after receiving the recommendation.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Codes of practice Part 4
Clause 30
Broadcasting Services Act 1992 213
30 ACMA to maintain Register of codes of practice
(1) The ACMA is to maintain a Register in which it includes all codes
of practice registered under clause 28.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
31 ACMA may determine standards where codes of practice fail or
where no code of practice developed
(1) If:
(a) the ACMA is satisfied that there is convincing evidence that
a code of practice registered under clause 28 is not operating
to provide appropriate community safeguards for a matter
referred to in subclause 28(2) in relation to the datacasting
operations of datacasting licensees; and
(b) the ACMA is satisfied that it should determine a standard in
relation to that matter;
the ACMA must, in writing, determine a standard in relation to that
matter.
(2) If:
(a) no code of practice has been registered under clause 28 for a
matter referred to in subclause 28(2); and
(b) the ACMA is satisfied that it should determine a standard in
relation to that matter;
the ACMA must, by notice in writing, determine a standard in
relation to that matter.
(3) A standard determined under this clause is a disallowable
instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
32 Consultation on standards
The ACMA must, before determining, varying or revoking a
standard, seek public comment on the proposed standard or the
variation or revocation.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 4 Codes of practice
Clause 33
214 Broadcasting Services Act 1992
33 Notification of determination or variation or revocation of
standards
If the ACMA determines or varies or revokes a standard, the
ACMA must publish in the Gazette a notice stating:
(a) that the standard has been determined, varied or revoked; and
(b) the places where copies of the standard or of the variation or
revocation can be purchased.
34 Limitation of ACMA’s power in relation to standards
(1) The ACMA must not determine a standard that requires that,
before datacasting content is transmitted, the datacasting content,
or a sample of the datacasting content, be approved by the ACMA
or by a person or body appointed by the ACMA.
(2) However, the ACMA may determine such a standard in relation to
datacasting content for children.
35 This Part does not apply to internet carriage services or ordinary
electronic mail
This Part does not apply to:
(a) the transmission of so much of a datacasting service as
consists of an internet carriage service; or
(b) the transmission of ordinary electronic mail.
35A This Part does not apply to the ABC or SBS
For the purposes of this Part, the Australian Broadcasting
Corporation and the Special Broadcasting Service Corporation are
taken not to be datacasting licensees.
Note: If the Australian Broadcasting Corporation or the Special
Broadcasting Service Corporation is otherwise a datacasting licensee,
it is a duty of the Board of the Corporation to develop a code of
practice that relates to the service provided under the licence. See
paragraph 8(1)(e) of the Australian Broadcasting Corporation Act
1983 and paragraph 10(1)(j) of the Special Broadcasting Service Act
1991.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Complaints to the ACMA about datacasting services Part 5
Clause 36
Broadcasting Services Act 1992 215
Part 5—Complaints to the ACMA about
datacasting services
36 Complaints about offences or breach of licence conditions
(1) If a person believes that a datacasting licensee has:
(a) committed an offence against this Act or the regulations; or
(b) breached a condition of the datacasting licence;
the person may make a complaint to the ACMA about the matter.
(2) If a person believes that another person is providing a designated
datacasting service without a datacasting licence that authorises the
provision of that service, the first-mentioned person may make a
complaint to the ACMA about the matter.
37 Complaints under codes of practice
(1) If:
(a) a person has made a complaint to a datacasting licensee about
a matter relating to:
(i) datacasting content; or
(ii) compliance with a code of practice that applies to the
datacasting operations of datacasting licensees and that
is included in the Register of codes of practice; and
(b) if there is a relevant code of practice relating to the handling
of complaints of that kind—the complaint was made in
accordance with that code of practice; and
(c) either:
(i) the person has not received a response within 60 days
after making the complaint; or
(ii) the person has received a response within that period
but considers that response to be inadequate;
the person may make a complaint to the ACMA about the matter.
(2) This clause does not apply to:
(a) the transmission of so much of a datacasting service as
consists of an internet carriage service; or
(b) the transmission of ordinary electronic mail.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 5 Complaints to the ACMA about datacasting services
Clause 38
216 Broadcasting Services Act 1992
(3) Also, this clause does not apply if the datacasting licensee is the
Australian Broadcasting Corporation or the Special Broadcasting
Service Corporation.
Note: Sections 150 to 153 deal with complaints about a datacasting service
provided by the Australian Broadcasting Corporation or the Special
Broadcasting Service Corporation.
38 Investigation of complaints by the ACMA
(1) The ACMA must investigate the complaint.
(2) However, the ACMA need not investigate the complaint if it is
satisfied that:
(a) the complaint is frivolous or vexatious or was not made in
good faith; or
(b) in the case of a complaint referred to in subclause 36(1)—the
complaint does not relate to:
(i) an offence against this Act or the regulations; or
(ii) a breach of a condition of a licence.
(3) The ACMA must notify the complainant of the results of such an
investigation.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Control of datacasting transmitter licences Part 6
Clause 41
Broadcasting Services Act 1992 217
Part 6—Control of datacasting transmitter licences
41 Datacasting transmitter licences not to be controlled by ABC or
SBS
(1) The Australian Broadcasting Corporation must not be in a position
to exercise control of a datacasting transmitter licence.
(2) The Special Broadcasting Service Corporation must not be in a
position to exercise control of a datacasting transmitter licence.
(3) Subclauses (1) and (2) do not apply to a channel B datacasting
transmitter licence unless the relevant transmitter, or any of the
relevant transmitters, is operated for transmitting a datacasting
service that is capable of being received by a domestic digital
television receiver.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 7 Nominated datacaster declarations
Clause 42
218 Broadcasting Services Act 1992
Part 7—Nominated datacaster declarations
42 Object of this Part
The object of this Part is to provide for the making of declarations
(nominated datacaster declarations) that allow the following
licences to be held by different persons:
(a) a datacasting licence that authorises the provision of a
datacasting service;
(b) a datacasting transmitter licence for a radiocommunications
transmitter that is for use for transmitting the datacasting
service.
43 Datacasting transmitter licence
A reference in this Part to a datacasting transmitter licence does
not include a reference to an authorisation under section 114 of the
Radiocommunications Act 1992.
44 Applications for nominated datacaster declarations
(1) If there is:
(a) a datacasting licence that authorises the provision of a
datacasting service; and
(b) a datacasting transmitter licence for a transmitter that is
intended for use for transmitting the datacasting service;
the licensee of the datacasting transmitter licence may apply to the
ACMA for a nominated datacaster declaration in relation to the
provision of the datacasting service under the datacasting licence.
(2) An application must be accompanied by:
(a) the application fee determined in writing by the ACMA; and
(b) the consent of the licensee of the datacasting licence.
(3) The application and consent must be:
(a) in writing; and
(b) in accordance with a form approved in writing by the
ACMA.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Nominated datacaster declarations Part 7
Clause 45
Broadcasting Services Act 1992 219
45 Making a nominated datacaster declaration
(1) After considering the application, the ACMA must declare in
writing that the provision of the datacasting service under the
datacasting licence is nominated in relation to the datacasting
transmitter licence if the ACMA is satisfied that:
(a) the licensee of the datacasting transmitter licence will
transmit the datacasting service on behalf of the licensee of
the datacasting licence; and
(b) the licensee of the datacasting transmitter licence will not be
involved in the selection or provision of datacasting content
to be transmitted on the datacasting service.
(2) The ACMA must give a copy of the declaration to:
(a) the applicant; and
(b) the licensee of the datacasting licence.
(3) If the ACMA refuses to make a nominated datacaster declaration,
the ACMA must give written notice of the refusal to:
(a) the applicant; and
(b) the licensee of the datacasting licence.
46 Effect of nominated datacaster declaration
If:
(a) a nominated datacaster declaration is in force; and
(b) the licensee of the datacasting transmitter licence transmits
the datacasting service on behalf of the licensee of the
datacasting licence;
then:
(c) for the purposes of the Radiocommunications Act 1992, the
licensee of the datacasting licence is taken not to operate the
radiocommunications transmitter for any purpose in
connection with that transmission; and
(d) for the purposes of this Act:
(i) the licensee of the datacasting licence is taken to
provide the datacasting service; and
(ii) the licensee of the datacasting transmitter licence is
taken not to provide the datacasting service; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 7 Nominated datacaster declarations
Clause 47
220 Broadcasting Services Act 1992
(e) for the purposes of this Act (other than Schedule 1) and the
Tobacco Advertising Prohibition Act 1992, any content that
is transmitted by the licensee of the datacasting transmitter
licence on behalf of the licensee of the datacasting licence:
(i) is taken to be content transmitted by the licensee of the
datacasting licence; and
(ii) is not taken to be content transmitted by the licensee of
the datacasting transmitter licence.
47 Revocation of nominated datacaster declaration
(1) The ACMA must, by writing, revoke a nominated datacaster
declaration if the ACMA is satisfied that:
(a) the licensee of the datacasting transmitter licence is not
transmitting, or does not propose to transmit, the datacasting
service on behalf of the licensee of the datacasting licence; or
(b) the licensee of the datacasting transmitter licence is involved,
or proposes to become involved, in the selection or provision
of datacasting content to be transmitted on the datacasting
service.
(2) The ACMA must, by writing, revoke a nominated datacaster
declaration if:
(a) the licensee of the datacasting transmitter licence; or
(b) the licensee of the datacasting licence;
gives the ACMA a written notice stating that the licensee does not
consent to the continued operation of the declaration.
(3) The ACMA must give a copy of the revocation to:
(a) the licensee of the datacasting transmitter licence; and
(b) the licensee of the datacasting licence.
(4) A revocation under subclause (1) or (2) takes effect on the date
specified in the revocation.
(5) The ACMA must not revoke a nominated datacaster declaration
under subclause (1) unless the ACMA has first:
(a) given the licensee of the datacasting transmitter licence a
written notice:
(i) setting out a proposal to revoke the declaration; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Nominated datacaster declarations Part 7
Clause 48
Broadcasting Services Act 1992 221
(ii) inviting the licensee to make a submission to the
ACMA on the proposal; and
(b) given the licensee of the datacasting licence a written notice:
(i) setting out a proposal to revoke the declaration; and
(ii) inviting the licensee to make a submission to the
ACMA on the proposal; and
(c) considered any submission that was received under
paragraph (a) or (b) within the time limit specified in the
notice concerned.
(6) A time limit specified in a notice under subclause (5) must run for
at least 7 days.
(7) A person must not enter into a contract or arrangement under
which the person or another person is:
(a) prevented from giving a notice under subclause (2); or
(b) subject to any restriction in relation to the giving of a notice
under subclause (2).
(8) A contract or arrangement entered into in contravention of
subclause (7) is void.
48 Register of nominated datacaster declarations
(1) The ACMA is to maintain a register in which the ACMA includes
particulars of all nominated datacaster declarations currently in
force.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 8 Remedies for breaches of licensing provisions
Division 1 Providing a designated datacasting service without a licence
Clause 49
222 Broadcasting Services Act 1992
Part 8—Remedies for breaches of licensing
provisions
Division 1—Providing a designated datacasting service
without a licence
49 Prohibition on providing a designated datacasting service
without a licence
(1) A person is guilty of an offence if the person:
(a) intentionally provides a designated datacasting service; and
(b) does not have a datacasting licence to provide the service.
Penalty: 20,000 penalty units.
(2) A person who contravenes subclause (1) is guilty of a separate
offence in respect of each day (including a day of a conviction for
the offence or any later day) during which the contravention
continues.
(3) A person must not provide a designated datacasting service if the
person does not have a datacasting licence to provide that service.
(4) Subclause (3) is a civil penalty provision.
(5) A person who contravenes subclause (3) commits a separate
contravention of that subclause in respect of each day (including a
day of the making of a relevant civil penalty order or any
subsequent day) during which the contravention continues.
Note 1: For exemptions for broadcasters, see clause 51.
Note 2: For exemptions for designated teletext services, see clause 51A.
50 Remedial directions—unlicensed datacasting services
(1) If the ACMA is satisfied that a person has breached, or is
breaching, subclause 49(3), the ACMA may, by written notice
given to the person, direct the person to take action directed
towards ensuring that the person does not breach that subclause, or
is unlikely to breach that subclause, in the future.
Note 1: For exemptions for broadcasters, see clause 51.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Remedies for breaches of licensing provisions Part 8
Providing a designated datacasting service without a licence Division 1
Clause 51
Broadcasting Services Act 1992 223
Note 2: For exemptions for designated teletext services, see clause 51A.
Offence
(2) A person commits an offence if:
(a) the person has been given a notice under subclause (1); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(3) A person who contravenes subclause (2) commits a separate
offence in respect of each day (including a day of a conviction for
the offence or any subsequent day) during which the contravention
continues.
Civil penalty
(4) A person must comply with a notice under subclause (1).
(5) Subclause (4) is a civil penalty provision.
(6) A person who contravenes subclause (4) commits a separate
contravention of that subclause in respect of each day (including a
day of the making of a relevant civil penalty order or any
subsequent day) during which the contravention continues.
Definition
(7) In this clause:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
51 Exemption for broadcasting licensees etc.
(1) Clauses 49 and 50 do not apply to the provision of a broadcasting
service under, and in accordance with the conditions of:
(a) a licence allocated by the ACMA under this Act (other than
this Schedule); or
(b) a class licence.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 8 Remedies for breaches of licensing provisions
Division 1 Providing a designated datacasting service without a licence
Clause 51A
224 Broadcasting Services Act 1992
(2) Clauses 49 and 50 do not apply to the provision of a national
broadcasting service.
51A Exemption for designated teletext services
Clauses 49 and 50 do not apply to the provision of a designated
teletext service (within the meaning of Schedule 4).
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Remedies for breaches of licensing provisions Part 8
Breaches of licence conditions Division 2
Clause 52
Broadcasting Services Act 1992 225
Division 2—Breaches of licence conditions
52 Offence for breach of conditions
(1) A person is guilty of an offence if:
(a) the person is a datacasting licensee; and
(b) the person intentionally engages in conduct; and
(c) the person’s conduct breaches a condition of the licence set
out in clause 14, 16, 21 or 24.
Penalty: 2,000 penalty units.
(1A) A person commits an offence if:
(a) the person is a restricted datacasting licensee; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches a condition of the licence set
out in clause 24A.
Penalty: 2,000 penalty units.
(2) A person who contravenes subclause (1) or (1A) is guilty of a
separate offence in respect of each day (including a day of a
conviction for the offence or any later day) during which the
contravention continues.
52A Civil penalty provision relating to breach of conditions of
datacasting licences
(1) A datacasting licensee must not breach a condition of the licence
set out in clause 14, 16, 21 or 24.
(1A) A restricted datacasting licensee must not breach a condition of the
licence set out in clause 24A.
(2) Subclauses (1) and (1A) are civil penalty provisions.
(3) A person who contravenes subclause (1) or (1A) commits a
separate contravention of that subclause in respect of each day
(including a day of the making of a relevant civil penalty order or
any subsequent day) during which the contravention continues.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 8 Remedies for breaches of licensing provisions
Division 2 Breaches of licence conditions
Clause 53
226 Broadcasting Services Act 1992
53 Remedial directions—breach of conditions
(1) If a datacasting licensee has breached, or is breaching, a condition
of the licence (other than the condition set out in clause 25), the
ACMA may, by written notice given to the licensee, direct the
licensee to take action directed towards ensuring that the licensee
does not breach the condition, or is unlikely to breach the
condition, in the future.
(2) The following are examples of the kinds of direction that may be
given to a licensee under subclause (1):
(a) a direction that the licensee implement effective
administrative systems for monitoring compliance with a
condition of the licence;
(b) a direction that the licensee implement a system designed to
give the licensee’s employees, agents and contractors a
reasonable knowledge and understanding of the requirements
of a condition of the licence, in so far as those requirements
affect the employees, agents or contractors concerned.
(3) A person is not required to comply with a notice under
subclause (1) until the end of the period specified in the notice.
That period must be reasonable.
(4) A person is guilty of an offence if:
(a) a person has been given a notice under subclause (1); and
(b) the person intentionally engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(5) A person who contravenes subclause (4) is guilty of a separate
offence in respect of each day (including a day of a conviction for
the offence or any later day) during which the contravention
continues.
(6) A person must comply with a notice under subclause (1).
(7) Subclause (6) is a civil penalty provision.
(8) A person who contravenes subclause (6) commits a separate
contravention of that subclause in respect of each day (including a
day of the making of a relevant civil penalty order or any
subsequent day) during which the contravention continues.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Remedies for breaches of licensing provisions Part 8
Breaches of licence conditions Division 2
Clause 54
Broadcasting Services Act 1992 227
54 Suspension and cancellation
(1) If a person who is a datacasting licensee:
(a) fails to comply with a notice under clause 53; or
(b) breaches a condition of the licence;
the ACMA may, by written notice given to the person:
(c) suspend the licence for such period, not exceeding 3 months,
as is specified in the notice; or
(d) cancel the licence.
(2) If a datacasting licence is suspended because of a breach of a
condition set out in clause 14, 16 or 21, the ACMA may take such
action, by way of suspending one or more datacasting licences held
by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a
substantially similar, datacasting service is not transmitted by the
licensee or the related body corporate, as the case may be, during
the period of suspension.
(2A) If a restricted datacasting licence is suspended because of a breach
of a condition set out in clause 24A, the ACMA may take such
action, by way of suspending one or more restricted datacasting
licences held by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a
substantially similar, restricted datacasting service is not provided
by the licensee or the related body corporate, as the case may be,
during the period of suspension.
(3) If a datacasting licence is cancelled because of a breach of a
condition set out in clause 14, 16 or 21, the ACMA may take such
action, by way of cancelling one or more datacasting licences held
by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a
substantially similar, datacasting service is not transmitted by the
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 8 Remedies for breaches of licensing provisions
Division 2 Breaches of licence conditions
Clause 55
228 Broadcasting Services Act 1992
licensee or the related body corporate, as the case may be, at a time
after the cancellation.
(3A) If a restricted datacasting licence is cancelled because of a breach
of a condition set out in clause 24A, the ACMA may take such
action, by way of cancelling one or more restricted datacasting
licences held by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a
substantially similar, restricted datacasting service is not provided
by the licensee or the related body corporate, as the case may be, at
a time after the cancellation.
(4) If the ACMA proposes to take action against a person under
subclause (1), (2), (2A), (3) or (3A), the ACMA must give to the
person:
(a) written notice of its intention; and
(b) a reasonable opportunity to make representations to the
ACMA in relation to the proposed action.
55 Injunctions
Restraining injunctions
(1) If a person who is a datacasting licensee has engaged, is engaging
or is proposing to engage, in any conduct in contravention of a
condition of the licence (other than a condition set out in
clause 25), the Federal Court may, on the application of the
ACMA, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do so—requiring
the person to do something.
(2) If a person has engaged, is engaging or is proposing to engage, in
any conduct in contravention of clause 49, the Federal Court may,
on the application of the ACMA, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do so—requiring
the person to do something.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Remedies for breaches of licensing provisions Part 8
Breaches of licence conditions Division 2
Clause 56
Broadcasting Services Act 1992 229
Performance injunctions
(3) If:
(a) a person who is a datacasting licensee has refused or failed,
or is refusing or failing, or is proposing to refuse or fail, to do
an act or thing; and
(b) the refusal or failure was, is or would be a contravention of a
condition of the licence (other than a condition set out in
clause 25);
the Federal Court may, on the application of the ACMA, grant an
injunction requiring the person to do that act or thing.
56 Federal Court’s powers relating to injunctions
Grant of interim injunction
(1) If an application is made to the Federal Court for an injunction
under clause 55, the court may, before considering the application,
grant an interim injunction restraining a person from engaging in
conduct of a kind referred to in that clause.
No undertakings as to damages
(2) The Federal Court is not to require an applicant for an injunction
under clause 55, as a condition of granting an interim injunction, to
give any undertakings as to damages.
Discharge etc. of injunctions
(3) The Federal Court may discharge or vary an injunction granted
under clause 55.
Certain limits on granting injunctions do not apply
(4) The power of the Federal Court under clause 55 to grant an
injunction restraining a person from engaging in conduct of a
particular kind may be exercised:
(a) if the court is satisfied that the person has engaged in conduct
of that kind—whether or not it appears to the court that the
person intends to engage again, or to continue to engage, in
conduct of that kind; or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 8 Remedies for breaches of licensing provisions
Division 2 Breaches of licence conditions
Clause 57
230 Broadcasting Services Act 1992
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will engage in conduct of that kind—
whether or not the person has previously engaged in conduct
of that kind and whether or not there is an imminent danger
of substantial damage to any person if the person engages in
conduct of that kind.
(5) The power of the Federal Court under clause 55 to grant an
injunction requiring a person to do an act or thing may be
exercised:
(a) if the court is satisfied that the person has refused or failed to
do that act or thing—whether or not it appears to the court
that the person intends to refuse or fail again, or to continue
to refuse or fail, to do that act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will refuse or fail to do that act or
thing—whether or not the person has previously refused or
failed to do that act or thing and whether or not there is an
imminent danger of substantial damage to any person if the
person refuses or fails to do that act or thing.
Other powers of the court unaffected
(6) The powers conferred on the Federal Court under clause 55 are in
addition to, and not instead of, any other powers of the court,
whether conferred by this Act or otherwise.
57 Stay of proceedings relating to additional licence conditions,
remedial directions and suspension/cancellation decisions
(1) For the purposes of this clause, an eligible decision is:
(a) a decision under clause 26 to impose or vary a condition of a
datacasting licence; or
(b) a decision to give a direction under clause 53 (which deals
with remedial directions); or
(c) a decision to suspend or cancel a datacasting licence under
clause 54.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Remedies for breaches of licensing provisions Part 8
Breaches of licence conditions Division 2
Clause 57
Broadcasting Services Act 1992 231
(2) An order must not be made under paragraph 15(1)(a) or 15A(1)(a)
of the Administrative Decisions (Judicial Review) Act 1977 in
relation to an eligible decision if:
(a) the order has the effect of suspending the operation of the
eligible decision for more than 3 months; or
(b) the order and any previous order or orders made under the
paragraph concerned have the combined effect of suspending
the operation of the eligible decision for more than 3 months.
(3) An order must not be made under paragraph 15(1)(b) or 15A(1)(b)
of the Administrative Decisions (Judicial Review) Act 1977 in
relation to an eligible decision if:
(a) the order has the effect of staying particular proceedings
under the eligible decision for more than 3 months; or
(b) the order and any previous order or orders made under the
paragraph concerned have the combined effect of staying
particular proceedings under the eligible decision for more
than 3 months.
(4) If:
(a) a person applies to the Federal Court under
subsection 39B(1) of the Judiciary Act 1903 for a writ or
injunction in relation to an eligible decision; and
(b) an order could be made staying, or otherwise affecting the
operation or implementation of, the eligible decision pending
the finalisation of the application;
such an order must not be made if:
(c) the order has the effect of staying, or otherwise affecting the
operation or implementation of, the eligible decision for
more than 3 months; or
(d) the order and any previous order or orders covered by
paragraph (b) have the combined effect of staying, or
otherwise affecting the operation or implementation of, the
eligible decision for more than 3 months.
(5) If:
(a) a person applies to the Administrative Appeals Tribunal for
review of an eligible decision; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 8 Remedies for breaches of licensing provisions
Division 2 Breaches of licence conditions
Clause 57
232 Broadcasting Services Act 1992
(b) an order could be made under subsection 41(2) of the
Administrative Appeals Tribunal Act 1975 staying, or
otherwise affecting the operation or implementation of, the
eligible decision;
such an order must not be made if:
(c) the order has the effect of staying, or otherwise affecting the
operation or implementation of, the eligible decision for
more than 3 months; or
(d) the order and any previous order or orders covered by
paragraph (b) have the combined effect of staying, or
otherwise affecting the operation or implementation of, the
eligible decision for more than 3 months.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Datacasting services Schedule 6
Review of decisions Part 9
Clause 58
Broadcasting Services Act 1992 233
Part 9—Review of decisions
58 Review by the Administrative Appeals Tribunal
An application may be made to the Administrative Appeals
Tribunal for a review of a decision set out in the second column of
the table made under the provision of this Schedule set out in the
third column, but such an application may only be made by the
person described in the fourth column.
Reviewable decisions
Item Decision Provision Person who
may apply
1 refusal to allocate datacasting
licence
clause 7 or 8 the applicant
2 that a person is not a suitable
applicant
subclause 9(1) the person
2A that an internet carriage service is a
declared internet carriage service
subclause 23B(1) the licensee
3 that a person is not a suitable
licensee
subclause 25(3) the licensee
4 Variation of datacasting licence
conditions or imposition of new
conditions
subclause 26(1) the licensee
4A refusal to make an exemption order clause 27B the licensee
5 refusal to include a code of practice
in the Register
subclause 28(6) the relevant
industry group
6 refusal to make a nominated
datacaster declaration
clause 45 the licensee of
the datacasting
transmitter
licence or the
licensee of the
datacasting
licence
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 6 Datacasting services
Part 9 Review of decisions
Clause 59
234 Broadcasting Services Act 1992
Reviewable decisions
Item Decision Provision Person who
may apply
7 revocation of a nominated
datacaster declaration
clause 47 the licensee of
the datacasting
transmitter
licence or the
licensee of the
datacasting
licence
8 to give or vary, or to refuse to
revoke, a direction
clause 53 the licensee
9 suspension or cancellation of
datacasting licence
clause 54 the licensee
59 Notification of decisions to include notification of reasons and
appeal rights
If the ACMA makes a decision that is reviewable under clause 58,
the ACMA is to include in the document by which the decision is
notified:
(a) a statement setting out the reasons for the decision; and
(b) a statement to the effect that an application may be made to
the Administrative Appeals Tribunal for a review of the
decision.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Introduction Part 1
Clause 1
Broadcasting Services Act 1992 235
Schedule 7—Content services Note: See section 216D.
Part 1—Introduction
1 Simplified outline
The following is a simplified outline of this Schedule:
• A person may make a complaint to the ACMA about
prohibited content, or potential prohibited content, in relation
to certain services.
• The ACMA may take the following action to deal with
prohibited content or potential prohibited content:
(a) in the case of a hosting service—issue a take-down
notice;
(b) in the case of a live content service—issue a
service-cessation notice;
(c) in the case of a links service—issue a link-deletion
notice.
• Content (other than an eligible electronic publication) is
prohibited content if:
(a) the content has been classified RC or X 18+ by the
Classification Board; or
(b) the content has been classified R 18+ by the
Classification Board and access to the content is
not subject to a restricted access system; or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 1 Introduction
Clause 1
236 Broadcasting Services Act 1992
(c) the content has been classified MA 15+ by the
Classification Board, access to the content is not
subject to a restricted access system, the content
does not consist of text and/or one or more still
visual images, and the content is provided by a
commercial service (other than a news service or a
current affairs service); or
(d) the content has been classified MA 15+ by the
Classification Board, access to the content is not
subject to a restricted access system, and the
content is provided by a mobile premium service.
• Content that consists of an eligible electronic publication is
prohibited content if the content has been classified RC,
category 2 restricted or category 1 restricted by the
Classification Board.
• Generally, content is potential prohibited content if the
content has not been classified by the Classification Board,
but if it were to be classified, there is a substantial likelihood
that the content would be prohibited content.
• Bodies and associations that represent sections of the content
industry may develop industry codes.
• The ACMA has a reserve power to make an industry standard
if there are no industry codes or if an industry code is
deficient.
• The ACMA may make determinations regulating certain
content service providers and hosting service providers.
Note: The classification of an eligible electronic publication is the same as
the classification of the corresponding print publication—see
clause 24.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Introduction Part 1
Clause 2
Broadcasting Services Act 1992 237
2 Definitions
In this Schedule:
access includes:
(a) access that is subject to a pre-condition (for example, the use
of a password); and
(b) access by way of push technology; and
(c) access by way of a standing request.
access-control system, in relation to content, means a system under
which:
(a) persons seeking access to the content have been issued with a
Personal Identification Number that provides a means of
limiting access by other persons to the content; or
(b) persons seeking access to the content have been provided
with some other means of limiting access by other persons to
the content.
adult means an individual who is 18 or older.
adult chat service means a chat service where, having regard to
any or all of the following:
(a) the name of the chat service;
(b) the way in which the chat service is advertised or promoted;
(c) the reputation of the chat service;
it would be concluded that the majority of the content accessed by
end-users of the chat service is reasonably likely to be prohibited
content or potential prohibited content.
ancillary subscription television content service has the meaning
given by clause 9A.
Australia, when used in a geographical sense, includes all the
external Territories.
Australian connection has the meaning given by clause 3.
Australian police force means:
(a) the Australian Federal Police; or
(b) the police force of a State or Territory.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 1 Introduction
Clause 2
238 Broadcasting Services Act 1992
carriage service has the same meaning as in the
Telecommunications Act 1997.
carriage service intermediary has the same meaning as in the
Telecommunications Act 1997.
carriage service provider has the same meaning as in the
Telecommunications Act 1997.
child means an individual who has not reached 18 years.
civil proceeding includes a civil action.
classification application means an application under clause 22.
Classification Board means the Classification Board established
by the Classification (Publications, Films and Computer Games)
Act 1995.
Classification Review Board means the Classification Review
Board established by the Classification (Publications, Films and
Computer Games) Act 1995.
classified means classified under this Schedule.
commercial content service means a content service that:
(a) is operated for profit or as part of a profit-making enterprise;
and
(b) is provided to the public but only on payment of a fee
(whether periodical or otherwise).
commercial content service provider means a person who provides
a commercial content service.
Note: See clause 5.
computer game has the same meaning as in the Classification
(Publications, Films and Computer Games) Act 1995.
content means content:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or
otherwise); or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Introduction Part 1
Clause 2
Broadcasting Services Act 1992 239
(e) whether in any other form; or
(f) whether in any combination of forms.
content service means:
(a) a service that delivers content to persons having equipment
appropriate for receiving that content, where the delivery of
the service is by means of a carriage service; or
(b) a service that allows end-users to access content using a
carriage service;
but does not include:
(c) a licensed broadcasting service; or
(d) a national broadcasting service; or
(e) a re-transmitted broadcasting service; or
(f) a licensed datacasting service; or
(g) a re-transmitted datacasting service; or
(h) an exempt Parliamentary content service; or
(i) an exempt court/tribunal content service; or
(j) an exempt official-inquiry content service; or
(k) an exempt point-to-point content service; or
(l) an exempt internet directory service; or
(m) an exempt internet search engine service; or
(n) a service that enables end-users to communicate, by means of
voice calls, with other end-users; or
(o) a service that enables end-users to communicate, by means of
video calls, with other end-users; or
(p) a service that enables end-users to communicate, by means of
email, with other end-users; or
(q) an instant messaging service that:
(i) enables end-users to communicate with other end-users;
and
(ii) is not an adult chat service; or
(r) an SMS service that:
(i) enables end-users to communicate with other end-users;
and
(ii) is not an adult chat service; or
(s) an MMS service that:
(i) enables end-users to communicate with other end-users;
and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 1 Introduction
Clause 2
240 Broadcasting Services Act 1992
(ii) is not an adult chat service; or
(t) a service that delivers content by fax; or
(u) an exempt data storage service; or
(v) an exempt back-up service; or
(x) a service specified in the regulations.
Note 1: SMS is short for short message service.
Note 2: MMS is short for multimedia message service.
Note 3: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
content service provider means a person who provides a content
service.
Note: See clause 5.
corresponding print publication, in relation to an eligible
electronic publication, has the meaning given by clause 11.
court/tribunal proceedings means words spoken and acts done in
the course of, or for purposes of or incidental to, the transacting of
the business of a court or a tribunal, and includes:
(a) evidence given before the court or tribunal; and
(b) a document presented or submitted to the court or tribunal;
and
(c) a document issued or published by, or with the authority of,
the court or tribunal.
data storage device means any article or material (for example, a
disk) from which information is capable of being reproduced, with
or without the aid of any other article or device.
designated content/hosting service means:
(a) a hosting service; or
(b) a live content service; or
(c) a links service; or
(d) a commercial content service.
designated content/hosting service provider means a person who
provides a designated content/hosting service.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Introduction Part 1
Clause 2
Broadcasting Services Act 1992 241
designated content/hosting service provider rule means:
(a) a provision declared by this Schedule to be a designated
content/hosting service provider rule; or
(b) each of the rules (if any) set out in a designated
content/hosting service provider determination in force under
clause 104.
eligible electronic publication has the meaning given by clause 11.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
evidential burden, in relation to a matter, means the burden of
adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
exempt back-up service means a back-up service, where each
end-user’s access is restricted to the end-user’s backed-up content.
exempt court/tribunal content service means a service to the
extent to which it delivers, or provides access to, content that
consists of court/tribunal proceedings.
exempt data storage service means a data storage service, where
each end-user’s access is restricted to the end-user’s stored content.
exempt internet directory service means an internet directory
service that:
(a) does not specialise in providing links to, or information
about, websites that specialise in prohibited content or
potential prohibited content; and
(b) is not a service specified in the regulations; and
(c) complies with such other requirements (if any) as are
specified in the regulations.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
exempt internet search engine service means an internet search
engine service that:
(a) does not specialise in providing links to, or information
about, websites that specialise in prohibited content or
potential prohibited content; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 1 Introduction
Clause 2
242 Broadcasting Services Act 1992
(b) is not a service specified in the regulations; and
(c) complies with such other requirements (if any) as are
specified in the regulations.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
exempt official-inquiry content service means a service to the
extent to which it delivers, or provides access to, content that
consists of official-inquiry proceedings.
exempt Parliamentary content service means a service to the
extent to which it delivers, or provides access to, content that
consists of Parliamentary proceedings.
exempt point-to-point content service means a service that:
(a) delivers content by:
(i) email; or
(ii) instant messaging; or
(iii) SMS; or
(iv) MMS;
where the content is produced or packaged by the provider of
the service; and
(b) does not specialise in content that is prohibited content or
potential prohibited content; and
(c) is not an adult chat service; and
(d) is not provided on payment of a fee (whether periodical or
otherwise); and
(e) is not a service specified in the regulations; and
(f) complies with such other requirements (if any) as are
specified in the regulations.
Note 1: SMS is short for short message service.
Note 2: MMS is short for multimedia message service.
Note 3: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
film has the same meaning as in the Classification (Publications,
Films and Computer Games) Act 1995, but does not include a form
of recording from which an eligible electronic publication can be
produced.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Introduction Part 1
Clause 2
Broadcasting Services Act 1992 243
Note: Film is defined broadly in that Act, and includes any form of
recording from which a visual image can be produced.
final link-deletion notice means a notice under paragraph 62(1)(d),
(e) or (f) or (4)(b), (c) or (d) of this Schedule.
final service-cessation notice means a notice under
paragraph 56(1)(c) or (d) or (4)(b) or (c) of this Schedule.
final take-down notice means a notice under paragraph 47(1)(c),
(d) or (e) or (4)(b), (c) or (d) of this Schedule.
hosting service has the meaning given by clause 4.
hosting service provider means a person who provides a hosting
service.
immediate circle has the same meaning as in the
Telecommunications Act 1997.
interim link-deletion notice means a notice under
paragraph 62(2)(c) or (3)(d) of this Schedule.
interim service-cessation notice means a notice under
paragraph 56(2)(d) or (3)(d) of this Schedule.
interim take-down notice means a notice under paragraph 47(2)(c)
or (3)(d) of this Schedule.
internet carriage service has the same meaning as in Schedule 5.
internet content has the same meaning as in Schedule 5.
licensed broadcasting service means a broadcasting service
provided in accordance with:
(a) a licence allocated by the ACMA under this Act; or
(b) a class licence determined by the ACMA under this Act.
licensed datacasting service means a datacasting service provided
by the holder of a datacasting licence that authorises the provision
of that service.
links service means a content service that:
(a) provides one or more links to content; and
(b) is provided to the public (whether on payment of a fee or
otherwise)
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 1 Introduction
Clause 2
244 Broadcasting Services Act 1992
links service provider means a person who provides a links
service.
Note: See clause 5.
live content does not include stored content.
live content service means a content service that:
(a) provides live content; and
(b) is provided to the public (whether on payment of a fee or
otherwise)
live content service provider means a person who provides a live
content service.
Note: See clause 5.
MA 15+ content has the meaning given by clause 15.
mobile carriage service provider means:
(a) a carriage service provider who supplies a public mobile
telecommunications service; or
(b) a carriage service intermediary who arranges for the supply
by a carriage service provider of a public mobile
telecommunications service.
mobile premium service means a commercial content service
where:
(a) a charge for the supply of the commercial content service is
expected to be included in a bill sent by or on behalf of a
mobile carriage service provider to the relevant customer; or
(b) a charge for the supply of the commercial content service is
payable:
(i) in advance; or
(ii) in any other manner;
by the relevant customer to a mobile carriage service
provider or a person acting on behalf of a mobile carriage
service provider.
official-inquiry proceedings means words spoken and acts done in
the course of, or for purposes of or incidental to, the transacting of
the business of:
(a) a Royal Commission; or
(b) an official inquiry;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Introduction Part 1
Clause 2
Broadcasting Services Act 1992 245
and includes:
(c) evidence given before the Royal Commission or official
inquiry; and
(d) a document presented or submitted to the Royal Commission
or official inquiry; and
(e) a document issued or published by, or with the authority of,
the Royal Commission or official inquiry.
Parliamentary proceedings means words spoken and acts done in
the course of, or for purposes of or incidental to, the transacting of
the business of:
(a) a Parliament; or
(b) a legislature; or
(c) a committee of a Parliament or legislature;
and includes:
(d) evidence given before the Parliament, legislature or
committee; and
(e) a document presented or submitted to the Parliament,
legislature or committee; and
(f) a document issued or published by, or with the authority of,
the Parliament, legislature or committee.
potential prohibited content has the meaning given by clause 21.
prohibited content has the meaning given by clause 20.
provided by a content service has the meaning given by clause 6.
provided to the public, in relation to a content service, has the
meaning given by clause 7.
public mobile telecommunications service has the same meaning
as in the Telecommunications Act 1997.
R 18+ content has the meaning given by clause 15.
restricted access system has the meaning given by clause 14.
re-transmitted broadcasting service has the meaning given by
clause 12.
re-transmitted datacasting service has the meaning given by
clause 13.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 1 Introduction
Clause 3
246 Broadcasting Services Act 1992
service includes a website or a distinct part of a website.
special link-deletion notice means a notice under clause 67.
special service-cessation notice means a notice under clause 59A.
special take-down notice means a notice under clause 52.
stored content means content kept on a data storage device. For
this purpose, disregard any storage of content on a highly transitory
basis as an integral function of the technology used in its
transmission.
Note: Momentary buffering (including momentary storage in a router in
order to resolve a path for further transmission) is an example of
storage on a highly transitory basis.
trained content assessor has the meaning given by clause 18.
voice call includes:
(a) if a voice call is not practical for a particular end-user with a
disability—a call that is equivalent to a voice call; and
(b) a call that involves a recorded or synthetic voice.
3 Australian connection
Content service
(1) For the purposes of this Schedule, a content service has an
Australian connection if, and only if:
(a) any of the content provided by the content service is hosted
in Australia; or
(b) in the case of a live content service—the live content service
is provided from Australia.
Note: A link is an example of content. If a link provided by a content service
is hosted in Australia, the content service will have an Australian
connection (see paragraph (a)).
Hosting service
(2) For the purposes of this Schedule, a hosting service has an
Australian connection if, and only if, any of the content hosted by
the hosting service is hosted in Australia.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Introduction Part 1
Clause 4
Broadcasting Services Act 1992 247
4 Hosting service
For the purposes of this Schedule, if:
(a) a person (the first person) hosts stored content; and
(b) the hosted content does not consist of:
(i) voicemail messages; or
(ii) video mail messages; or
(iii) email messages; or
(iv) SMS messages; or
(v) MMS messages; or
(vi) messages specified in the regulations; and
(c) the first person or another person provides a content service
that:
(i) provides the hosted content; and
(ii) is provided to the public (whether on payment of a fee
or otherwise);
the hosting of the stored content by the first person is taken to be
the provision by the first person of a hosting service to the public.
Note 1: SMS is short for short message service.
Note 2: MMS is short for multimedia message service.
Note 3: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
5 Content service provider
(1) For the purposes of this Schedule, a person does not provide a
content service merely because the person supplies a carriage
service that enables content to be delivered or accessed.
(2) For the purposes of this Schedule, a person does not provide a
content service merely because the person provides a billing
service, or a fee collection service, in relation to a content service.
6 When content is provided by a content service
For the purposes of this Schedule, content is provided by a content
service if the content is delivered by, or accessible to end-users
using, the content service.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 1 Introduction
Clause 7
248 Broadcasting Services Act 1992
7 When content service is provided to the public etc.
(1) For the purposes of this Schedule, a content service is provided to
the public if, and only if, the service is provided to at least one
person outside the immediate circle of the person who provides the
service.
(2) For the purposes of this Schedule, a content service that is provided
to the public is taken to be different from a content service that is
not provided to the public, even if the content provided by the
services is identical.
8 Links to content
For the purposes of this Schedule, if:
(a) a content service (the first content service) provides a link to
another content service; and
(b) the other content service specialises in prohibited content or
potential prohibited content; and
(c) the other content service provides particular content;
then:
(d) end-users of the first content service are taken to be able to
access the content mentioned in paragraph (c) using that link;
and
(e) that link is taken to be a link to the content mentioned in
paragraph (c).
9 Services supplied by way of a voice call or video call
If a service is supplied by way of:
(a) a voice call made using a carriage service; or
(b) a video call made using a carriage service;
the service is taken, for the purposes of this Schedule, to be a
content service that allows end-users to access the relevant content
using the carriage service.
9A Ancillary subscription television content service
(1) For the purposes of this Schedule, an ancillary subscription
television content service is a service that:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Introduction Part 1
Clause 10
Broadcasting Services Act 1992 249
(a) delivers content by way of television programs to persons
having equipment appropriate for receiving that content,
where:
(i) those television programs are stored on the equipment
(whether temporarily or otherwise); and
(ii) the equipment is also capable of receiving one or more
subscription television broadcasting services provided
in accordance with a licence allocated by the ACMA
under this Act; and
(iii) those television programs are delivered to a subscriber
to such a subscription television broadcasting service
under a contract with the relevant subscription
television broadcasting licensee; and
(b) complies with such other requirements (if any) as are
specified in the regulations.
(2) For the purposes of subsection (1), it is immaterial whether the
equipment is capable of receiving:
(a) content by way of television programs; or
(b) subscription television broadcasting services;
when used:
(c) in isolation; or
(d) in conjunction with any other equipment.
10 Classification of live content etc.
Recordings of live content
(1) If there is a recording of live content, the recording is taken, for the
purposes of classifying the live content under this Schedule, to be
the content.
Short duration segments
(2) If, on a particular day, live content has a duration of more than:
(a) 60 minutes; or
(b) if another number of minutes is specified in the regulations—
that other number of minutes;
each short duration segment of the content provided on that day is
taken, for the purposes of:
(c) classifying the content under this Schedule; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 1 Introduction
Clause 11
250 Broadcasting Services Act 1992
(d) Part 3 of this Schedule; and
(e) paragraph 81(1)(e) of this Schedule;
to be different live content from each other short duration segment
provided on that day.
(3) For the purposes of this clause, a short duration segment of live
content is a segment that has a duration of:
(a) 60 minutes; or
(b) if another number of minutes is specified in the regulations—
that other number of minutes.
(4) For the purposes of this clause, it is immaterial when a short
duration segment begins.
(5) For the purposes of this clause, it is immaterial whether short
duration segments overlap.
(6) Regulations made for the purposes of paragraph (2)(b) or (3)(b)
may make different provision with respect to different kinds of live
content.
(7) Subclause (6) does not limit subsection 33(3A) of the Acts
Interpretation Act 1901.
11 Eligible electronic publication
For the purposes of this Schedule, if:
(a) content consists of:
(i) an electronic edition of a book, magazine or newspaper;
or
(ii) an audio recording of the text, or abridged text, of a
book, magazine or newspaper; and
(b) a print edition of the book, magazine or newspaper is or was
available to the public (whether by way of purchase or
otherwise) in Australia;
then:
(c) the content is an eligible electronic publication; and
(d) the print edition of the book, magazine or newspaper is the
corresponding print publication in relation to the eligible
electronic publication.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Introduction Part 1
Clause 12
Broadcasting Services Act 1992 251
12 Re-transmitted broadcasting services
(1) For the purposes of this Schedule, a service is a re-transmitted
broadcasting service if the service does no more than:
(a) re-transmit programs that have been previously transmitted
by a licensed broadcasting service; or
(b) re-transmit programs that have been previously transmitted
by a national broadcasting service.
(2) In determining whether a service is a re-transmitted broadcasting
service:
(a) ignore any changes to the format in which the programs are
transmitted; and
(b) ignore any advertising or sponsorship matter; and
(c) ignore such other matters (if any) as are specified in the
regulations.
13 Re-transmitted datacasting services
(1) For the purposes of this Schedule, a service is a re-transmitted
datacasting service if the service does no more than re-transmit
datacasting content that has been previously transmitted by a
licensed datacasting service.
(2) In determining whether a service is a re-transmitted datacasting
service:
(a) ignore any changes to the format in which the datacasting
content is transmitted; and
(b) ignore any advertising or sponsorship matter; and
(c) ignore such other matters (if any) as are specified in the
regulations.
14 Restricted access system
(1) The ACMA may, by legislative instrument, declare that a specified
access-control system is a restricted access system in relation to
content for the purposes of this Schedule. A declaration under this
subclause has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislative
Instruments Act 2003.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 1 Introduction
Clause 15
252 Broadcasting Services Act 1992
(2) An instrument under subclause (1) may make different provision
with respect to:
(a) R 18+ content; and
(b) MA 15+ content.
(3) Subclause (2) does not limit subsection 33(3A) of the Acts
Interpretation Act 1901.
(4) In making an instrument under subclause (1), the ACMA must
have regard to:
(a) the objective of protecting children from exposure to content
that is unsuitable for children; and
(b) the objective of protecting children who have not reached 15
years from exposure to content that is unsuitable for children
who have not reached 15 years; and
(c) such other matters (if any) as the ACMA considers relevant.
(5) The ACMA must ensure that an instrument under subclause (1) is
in force at all times after the commencement of this Schedule.
15 R 18+ content and MA 15+ content
R 18+ content
(1) For the purposes of this Schedule, R 18+ content is:
(a) content (other than content that consists of an eligible
electronic publication) that has been classified R 18+ by the
Classification Board; or
(b) content (other than content that consists of an eligible
electronic publication) where the following conditions are
satisfied:
(i) the content has not been classified R 18+ by the
Classification Board;
(ii) if the content were to be classified by the Classification
Board, there is a substantial likelihood that the content
would be classified R 18+ by the Classification Board.
MA 15+ content
(2) For the purposes of this Schedule, MA 15+ content is:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Introduction Part 1
Clause 16
Broadcasting Services Act 1992 253
(a) content (other than content that consists of an eligible
electronic publication) that has been classified MA 15+ by
the Classification Board; or
(b) content (other than content that consists of an eligible
electronic publication) where the following conditions are
satisfied:
(i) the content has not been classified MA 15+ by the
Classification Board;
(ii) if the content were to be classified by the Classification
Board, there is a substantial likelihood that the content
would be classified MA 15+ by the Classification
Board.
Classification Board authorised to classify content
(3) For the purposes of this clause, it is to be assumed that this
Schedule authorised the Classification Board to classify the
content.
16 Content that consists of a film
For the purposes of this Schedule, in determining whether content
consists of the entire unmodified contents of a film, disregard any
differences between:
(a) the technique used to embody sounds and/or visual images in
the film; and
(b) the technique used to embody the sounds and/or visual
images in a form in which they can be delivered by means of,
or accessed using, the carriage service concerned.
17 Extended meaning of use
Unless the contrary intention appears, a reference in this Schedule
to the use of a thing is a reference to the use of the thing either:
(a) in isolation; or
(b) in conjunction with one or more other things.
18 Trained content assessor
(1) For the purposes of this Schedule, an individual is a trained
content assessor if:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 1 Introduction
Clause 19
254 Broadcasting Services Act 1992
(a) the individual has, at any time during the preceding 12
months, completed training in:
(i) the making of assessments of the kinds referred to in
paragraphs 81(1)(d) and (f) of this Schedule; and
(ii) giving advice of the kind referred to in
subparagraph 81(1)(e)(ii) of this Schedule; and
(b) the training was approved by the Director of the
Classification Board under subclause (2) of this clause.
(2) For the purposes of paragraph (1)(b), the Director of the
Classification Board may, by writing, approve specified training.
(3) An approval under subclause (2) is not a legislative instrument.
19 Extra-territorial application
(1) Unless the contrary intention appears, this Schedule extends to
acts, omissions, matters and things outside Australia.
Note: Clause 3 is an example of a contrary intention.
(2) Section 14.1 of the Criminal Code does not apply to an offence
against this Schedule.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Classification of content Part 2
Prohibited content and potential prohibited content Division 1
Clause 20
Broadcasting Services Act 1992 255
Part 2—Classification of content
Division 1—Prohibited content and potential prohibited
content
20 Prohibited content
Content other than eligible electronic publications
(1) For the purposes of this Schedule, content (other than content that
consists of an eligible electronic publication) is prohibited content
if:
(a) the content has been classified RC or X 18+ by the
Classification Board; or
(b) both:
(i) the content has been classified R 18+ by the
Classification Board; and
(ii) access to the content is not subject to a restricted access
system; or
(c) all of the following conditions are satisfied:
(i) the content has been classified MA 15+ by the
Classification Board;
(ii) access to the content is not subject to a restricted access
system;
(iii) the content does not consist of text and/or one or more
still visual images;
(iv) access to the content is provided by means of a content
service (other than a news service or a current affairs
service) that is operated for profit or as part of a
profit-making enterprise;
(v) the content service is provided on payment of a fee
(whether periodical or otherwise);
(vi) the content service is not an ancillary subscription
television content service; or
(d) all of the following conditions are satisfied:
(i) the content has been classified MA 15+ by the
Classification Board;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 2 Classification of content
Division 1 Prohibited content and potential prohibited content
Clause 21
256 Broadcasting Services Act 1992
(ii) access to the content is not subject to a restricted access
system;
(iii) access to the content is provided by means of a mobile
premium service.
Eligible electronic publications
(2) For the purposes of this Schedule, content that consists of an
eligible electronic publication is prohibited content if the content
has been classified RC, category 2 restricted or category 1
restricted by the Classification Board.
Note: The classification of an eligible electronic publication is the same as
the classification of the corresponding print publication—see
clause 24.
21 Potential prohibited content
(1) For the purposes of this Schedule, content is potential prohibited
content if:
(a) the content has not been classified by the Classification
Board; and
(b) if the content were to be classified by the Classification
Board, there is a substantial likelihood that the content would
be prohibited content.
(2) However, content is not potential prohibited content if:
(a) the content consists of an eligible electronic publication; and
(b) the content has not been classified by the Classification
Board; and
(c) if the content were to be classified by the Classification
Board, there is no substantial likelihood that the content
would be classified RC or category 2 restricted.
Note: The classification of an eligible electronic publication is the same as
the classification of the corresponding print publication—see
clause 24.
(3) In determining whether particular content is potential prohibited
content, it is to be assumed that this Schedule authorised the
Classification Board to classify the content.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Classification of content Part 2
Classification of content Division 2
Clause 22
Broadcasting Services Act 1992 257
Division 2—Classification of content
22 Applications for classification of content
(1) Any of the following persons may apply to the Classification
Board for classification of content under this Schedule:
(a) in the case of content that has been, or is being, hosted by a
hosting service—the hosting service provider concerned; or
(b) in the case of content that a hosting service provider is
considering whether to host—the hosting service provider; or
(c) in the case of content that has been, or is being, delivered to,
or accessed by, an end-user of a content service—the content
service provider concerned; or
(d) in the case of content that a content service provider is
considering whether to deliver to, or make available for
access by, an end-user of the content service concerned—the
content service provider; or
(e) in the case of content that has been, or can be, accessed using
a link provided by a links service—the links service provider
concerned; or
(f) in the case of content where a links service provider is
considering delivering, or making available for access, a link
that will enable end-users to access the content—the links
service provider; or
(g) in any case—the ACMA.
(2) An application must be:
(a) in writing; and
(b) made in a form approved in writing by the Director of the
Classification Board; and
(c) signed by or on behalf of the applicant; and
(d) accompanied by:
(i) the fee ascertained under clause 27; and
(ii) a copy of the content.
Note: For special rules about classification of live content, see clause 10.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 2 Classification of content
Division 2 Classification of content
Clause 23
258 Broadcasting Services Act 1992
23 Classification of content
If an application for classification of content is made under
clause 22, the Classification Board must:
(a) classify the content in accordance with whichever of
clauses 24 and 25 is applicable; and
(b) notify the applicant in writing of the classification of the
content.
24 Classification of content that consists of a film, a computer game
or an eligible electronic publication
Deemed classification
(1) If:
(a) content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the film or computer game has been classified under the
Classification (Publications, Films and Computer Games)
Act 1995;
the content is taken to have been classified by the Classification
Board under this Schedule in the same way as the film or the
computer game, as the case may be, was classified under that Act.
(2) If:
(a) content consists of an eligible electronic publication; and
(b) the corresponding print publication has been classified under
the Classification (Publications, Films and Computer
Games) Act 1995;
the content is taken to have been classified by the Classification
Board under this Schedule in the same way as the corresponding
print publication was classified under that Act.
Actual classification
(3) If:
(a) content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Classification of content Part 2
Classification of content Division 2
Clause 25
Broadcasting Services Act 1992 259
(b) the film or computer game has not been classified under the
Classification (Publications, Films and Computer Games)
Act 1995;
the Classification Board is to classify the content under this
Schedule in a corresponding way to the way in which the film or
computer game, as the case may be, would be classified under the
Classification (Publications, Films and Computer Games) Act
1995.
(4) If:
(a) content consists of an eligible electronic publication; and
(b) the corresponding print publication has not been classified
under the Classification (Publications, Films and Computer
Games) Act 1995;
the Classification Board is to classify the content under this
Schedule in a corresponding way to the way in which the
corresponding print publication would be classified under the
Classification (Publications, Films and Computer Games) Act
1995.
25 Classification of content that does not consist of a film, a
computer game or an eligible electronic publication
If content does not consist of:
(a) the entire unmodified contents of a film; or
(b) a computer game; or
(c) an eligible electronic publication;
the Classification Board is to classify the content under this
Schedule in a corresponding way to the way in which a film would
be classified under the Classification (Publications, Films and
Computer Games) Act 1995.
26 Deemed classification of content classified under Schedule 5
If content has been classified by the Classification Board under
Schedule 5 (otherwise than because of repealed subclause 12(1) of
that Schedule), the content is taken, for the purposes of this
Schedule, to have been classified by the Classification Board under
this Schedule in the same way as the content was classified under
Schedule 5.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 2 Classification of content
Division 2 Classification of content
Clause 27
260 Broadcasting Services Act 1992
27 Fees
(1) A person who makes an application under clause 22 is liable to pay
a fee.
(2) The amount of a fee payable under subclause (1) is ascertained
under whichever of subclauses (3), (4), (5) and (6) is applicable.
Films
(3) If content consists of the entire unmodified contents of a film,
regulations prescribing fees for the purposes of paragraph 14(1)(d)
of the Classification (Publications, Films and Computer Games)
Act 1995 apply, subject to such modifications (if any) as are
specified in regulations made for the purposes of this subclause, in
relation to the classification under this Schedule of the content in a
corresponding way to the way in which they apply to the
classification under that Act of the film.
Computer games
(4) If content consists of a computer game, regulations prescribing fees
for the purposes of paragraph 17(1)(d) of the Classification
(Publications, Films and Computer Games) Act 1995 apply,
subject to such modifications (if any) as are specified in regulations
made for the purposes of this subclause, in relation to the
classification under this Schedule of the content in a corresponding
way to the way in which they apply to the classification under that
Act of the computer game.
Eligible electronic publications
(5) If content consists of an eligible electronic publication, regulations
prescribing fees for the purposes of paragraph 13(1)(d) of the
Classification (Publications, Films and Computer Games) Act
1995 apply, subject to such modifications (if any) as are specified
in regulations made for the purposes of this subclause, in relation
to the classification under this Schedule of the content in a
corresponding way to the way in which they apply to the
classification under that Act of the corresponding print publication.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Classification of content Part 2
Classification of content Division 2
Clause 27
Broadcasting Services Act 1992 261
Content other than films, computer games or eligible electronic
publications
(6) If content does not consist of:
(a) the entire unmodified contents of a film; or
(b) a computer game; or
(c) an eligible electronic publication;
regulations prescribing fees for the purposes of paragraph 14(1)(d)
of the Classification (Publications, Films and Computer Games)
Act 1995 apply, subject to such modifications (if any) as are
specified in regulations made for the purposes of this subclause, in
relation to the classification under this Schedule of the content in a
corresponding way to the way in which they apply to the
classification under that Act of a film.
Fees must not be such as to amount to taxation
(7) A fee under subclause (1) must not be such as to amount to
taxation.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 2 Classification of content
Division 3 Reclassification
Clause 28
262 Broadcasting Services Act 1992
Division 3—Reclassification
28 Reclassification of content
(1) If content has been classified by the Classification Board
(otherwise than because of subclause 24(1) or (2)):
(a) the Classification Board must not reclassify the content
within the 2-year period beginning on the day on which the
classification occurred; and
(b) after that 2-year period, the Classification Board may
reclassify the content.
(2) The Classification Board may act under paragraph (1)(b):
(a) if required to do so by:
(i) the Minister; or
(ii) the ACMA; or
(iii) if another person applied, under clause 22, for
classification of the content—the other person; or
(b) on the Classification Board’s own initiative.
(3) If the Classification Board is required to act under
paragraph (1)(b), the Classification Board must do so.
(4) If content is reclassified by the Classification Board, the
Classification Board must give written notification to the following
persons accordingly:
(a) the Minister;
(b) the ACMA;
(c) if another person applied, under clause 22, for classification
of the content—the other person.
29 Notice of intention to reclassify content
(1) If:
(a) content has been classified by the Classification Board
(otherwise than because of subclause 24(1) or (2)); and
(b) the Classification Board intends to reclassify the content;
then:
(c) the Director of the Classification Board must give notice of
that intention, inviting submissions about the matter; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Classification of content Part 2
Reclassification Division 3
Clause 29
Broadcasting Services Act 1992 263
(d) the Director of the Classification Board must cause the
contents of the notice to be published, in such manner as the
Director decides, at least 30 days before the Classification
Board proposes to consider the matter; and
(e) the Director of the Classification Board must give a copy of
the notice to:
(i) the Minister; and
(ii) the ACMA; and
(iii) if another person applied, under clause 22, for
classification of the content—the other person;
at least 30 days before the Classification Board proposes to
consider the matter.
(2) A notice under paragraph (1)(c) must specify the day on which the
Board proposes to consider the matter.
(3) The matters that the Classification Board is to take into account in
reclassifying the content include issues raised in submissions made
to the Classification Board about the matter.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 2 Classification of content
Division 4 Review of classification decisions
Clause 30
264 Broadcasting Services Act 1992
Division 4—Review of classification decisions
Subdivision A—Review of classification of content
30 Persons who may apply for review
(1) If content has been classified by the Classification Board
(otherwise than because of subclause 24(1) or (2)), any of the
following persons may apply to the Classification Review Board
for a review of the classification:
(a) the Minister;
(b) the ACMA;
(c) if a person other than the ACMA applied, under clause 22,
for classification of the content—the other person;
(d) a person aggrieved by the classification.
(2) Without limiting paragraph (1)(d), if the classification referred to
in that paragraph is a restricted classification, the following persons
or bodies are taken to be persons aggrieved by the classification:
(a) a person who has engaged in a series of activities relating to,
or research into, the contentious aspects of the theme or
subject matter of the content concerned;
(b) an organisation or association, whether incorporated or not,
whose objects or purposes include, and whose activities
relate to, the contentious aspects of that theme or subject
matter.
(3) However, a person or body is not aggrieved by a restricted
classification because of subclause (2) if the classification was
made before:
(a) the person engaged in a series of activities relating to, or
research into, the contentious aspects of the theme or subject
matter of the content concerned; or
(b) the organisation or association was formed, or its objects or
purposes included and its activities related to, the contentious
aspects of that theme or subject matter.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Classification of content Part 2
Review of classification decisions Division 4
Clause 31
Broadcasting Services Act 1992 265
(4) In this clause:
restricted classification means:
(a) for content that does not consist of a computer game or an
eligible electronic publication—the classification MA 15+, R
18+, X 18+ or RC; or
(b) for content that consists of a computer game—the
classification MA 15+, R 18+ or RC; or
(c) for content that consists of an eligible electronic
publication—the classification category 1 restricted, category
2 restricted or Rc.
31 Applications for review
(1) An application for review of a classification must be:
(a) in writing; and
(b) made in a form approved in writing by the Convenor of the
Classification Review Board; and
(c) signed by or on behalf of the applicant; and
(d) except for an application made by the Minister—
accompanied by the fee ascertained under subclause (4).
(2) An application by the Minister or the ACMA for review of a
classification may be made at any time.
(3) Any other application for review of a classification must be made:
(a) within 30 days after the applicant is notified of the
classification; or
(b) within such longer period as the Classification Review Board
allows.
(4) If:
(a) the applicant for a review of the classification of content is
not covered by paragraph 30(1)(c); and
(b) a person other than the ACMA applied, under clause 22, for
classification of the content;
the Convenor of the Classification Review Board must notify the
person mentioned in paragraph (b), in writing, of:
(c) the application for review; and
(d) the day on which it will be considered.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 2 Classification of content
Division 4 Review of classification decisions
Clause 32
266 Broadcasting Services Act 1992
(5) Regulations prescribing fees for the purposes of paragraph 43(1)(d)
of the Classification (Publications, Films and Computer Games)
Act 1995 apply, subject to such modifications (if any) as are
specified in regulations made for the purposes of this subclause, to
a review of a classification under this Schedule in a corresponding
way to the way in which they apply to a review of a classification
under that Act.
(6) A fee under subclause (1) must not be such as to amount to
taxation.
32 Classification Review Board may refuse to deal with review
applications that are frivolous etc.
If the applicant for a review of the classification of content is
covered by paragraph 30(1)(d), the Classification Review Board
may refuse to deal with the application, or to deal further with the
application, if the Classification Review Board is satisfied that the
application is:
(a) frivolous; or
(b) vexatious; or
(c) not made in good faith.
33 Review
(1) For the purposes of reviewing a classification of content, the
Classification Review Board:
(a) may exercise all the powers and discretions that are conferred
on the Classification Board by this Schedule; and
(b) must make a decision in writing classifying the content.
(2) If the Classification Review Board classifies the content, this
Schedule (other than this Subdivision) and Schedule 5 have effect
as if the content had been reclassified by the Classification Board.
Subdivision B—Review of content that consists of a film or a
computer game
34 Review of classification of content that consists of a film or a
computer game
If:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Classification of content Part 2
Review of classification decisions Division 4
Clause 35
Broadcasting Services Act 1992 267
(a) content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the film or computer game has been classified under the
Classification (Publications, Films and Computer Games)
Act 1995; and
(c) the decision to classify the film or computer game is
reviewed by the Classification Review Board under that Act;
and
(d) as a result of the review, the Classification Review Board
classifies the film or computer game under that Act;
this Schedule and Schedule 5 have effect as if the film or computer
game had been reclassified by the Classification Board under this
Schedule in the same way as the film or computer game was
classified under that Act by the Classification Review Board.
Subdivision C—Review of content that consists of an eligible
electronic publication
35 Review of classification of content that consists of an eligible
electronic publication
If:
(a) content consists of an eligible electronic publication; and
(b) the corresponding print publication has been classified under
the Classification (Publications, Films and Computer
Games) Act 1995; and
(c) the decision to classify the corresponding print publication is
reviewed by the Classification Review Board under that Act;
and
(d) as a result of the review, the Classification Review Board
classifies the corresponding print publication under that Act;
this Schedule and Schedule 5 have effect as if the corresponding
print publication had been reclassified by the Classification Board
under this Schedule in the same way as the corresponding print
publication was classified under that Act by the Classification
Review Board.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 2 Classification of content
Division 5 Miscellaneous
Clause 36
268 Broadcasting Services Act 1992
Division 5—Miscellaneous
36 Decisions of the Classification Board etc.
(1) Section 57 of the Classification (Publications, Films and Computer
Games) Act 1995 applies to the consideration by the Classification
Board of a matter arising under this Schedule in a corresponding
way to the way in which it applies to the consideration of an
application under that Act.
(2) To avoid doubt, sections 10, 19, 20, 22, 23A, 24, 25, 26, 27, 28 and
44A, and Division 6 of Part 2, of the Classification (Publications,
Films and Computer Games) Act 1995 do not apply to a
classification under this Schedule.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Making of complaints to the ACMA Division 1
Clause 37
Broadcasting Services Act 1992 269
Part 3—Complaints to, and investigations by, the
ACMA
Division 1—Making of complaints to the ACMA
37 Complaints about prohibited content or potential prohibited
content
Complaints about access to prohibited content or potential
prohibited content
(1) If a person has reason to believe that end-users in Australia can
access prohibited content or potential prohibited content provided
by a content service, the person may make a complaint to the
ACMA about the matter.
Complaints about hosting services
(2) If a person has reason to believe that a hosting service is:
(a) hosting prohibited content; or
(b) hosting potential prohibited content;
the person may make a complaint to the ACMA about the matter.
Complaints about links services
(3) If a person has reason to believe that end-users in Australia can
access prohibited content or potential prohibited content using a
link provided by a links service, the person may make a complaint
to the ACMA about the matter.
Content of complaint
(4) A complaint under subclause (1), (2) or (3) about particular content
must:
(a) identify the content; and
(b) if the content is stored content—set out how to access the
content (for example: set out a URL, a password, or the name
of a newsgroup); and
(c) if:
(i) the content is stored content; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 1 Making of complaints to the ACMA
Clause 37
270 Broadcasting Services Act 1992
(ii) the complainant knows the country or countries in
which the content is hosted;
set out the name of that country or those countries; and
(d) if the content is live content—set out details of how the
content was accessed (for example: set out a URL or a
password); and
(e) if:
(i) the content is live content; and
(ii) the complainant believes that a particular incident
depicted by the live content is sufficient to characterise
the content as prohibited content or potential prohibited
content;
set out the date and approximate time when that incident
occurred; and
(f) set out the complainant’s reasons for believing that the
content is prohibited content or potential prohibited content;
and
(g) set out such other information (if any) as the ACMA
requires.
(5) The rule in paragraph (4)(b) does not apply to a complaint to the
extent (if any) to which finding out how to access the content
would cause the complainant to contravene a law of the
Commonwealth, a State or a Territory.
(6) The rule in paragraph (4)(d) does not apply to a complaint to the
extent (if any) to which finding out how the content was accessed
would cause the complainant to contravene a law of the
Commonwealth, a State or a Territory.
Timing of complaint about live content
(7) If:
(a) a person makes a complaint under subclause (1) about live
content; and
(b) the person believes that a particular incident depicted in the
live content is sufficient to characterise the content as
prohibited content or potential prohibited content;
the complaint must be made within 60 days after the occurrence of
the incident.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Making of complaints to the ACMA Division 1
Clause 38
Broadcasting Services Act 1992 271
Transitional
(8) A person is not entitled to make a complaint under subclause (1),
(2) or (3) about something that occurred before the commencement
of this clause.
38 Complaints relating to breach of a designated content/hosting
service provider rule etc.
(1) If a person (the first person) has reason to believe that another
person has:
(a) breached a designated content/hosting service provider rule
that applies to the other person; or
(b) committed an offence against this Schedule; or
(c) breached a civil penalty provision of this Schedule;
the first person may make a complaint to the ACMA about the
matter.
(2) If a person has reason to believe that a participant in the content
industry (within the meaning of Part 4 of this Schedule) has
breached a code registered under that Part that is applicable to the
participant, the person may make a complaint to the ACMA about
the matter.
39 Form of complaint
(1) A complaint under this Division is to be in writing.
(2) However, the ACMA may permit complaints to be given, in
accordance with specified software requirements, by way of a
specified kind of electronic transmission.
40 Recordings of live content
(1) If:
(a) a complaint under subclause 37(1) about live content is
accompanied by a recording of:
(i) the live content; or
(ii) a segment of the live content; and
(b) the complainant made the recording;
neither making the recording, nor giving the recording to the
ACMA, is taken to have infringed copyright.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 1 Making of complaints to the ACMA
Clause 41
272 Broadcasting Services Act 1992
(2) Subclause (1) does not apply if:
(a) the ACMA is satisfied that the complaint is:
(i) frivolous; or
(ii) vexatious; or
(iii) not made in good faith; or
(b) the ACMA has reason to believe that the complaint was
made for the purpose, or for purposes that include the
purpose, of frustrating or undermining the effective
administration of this Schedule; or
(c) the making of the recording would cause the complainant to
contravene:
(i) a law of the Commonwealth (other than the Copyright
Act 1968); or
(ii) a law of a State; or
(iii) a law of a Territory.
41 Residency etc. of complainant
A person is not entitled to make a complaint under this Division
unless the person is:
(a) an individual who resides in Australia; or
(b) a body corporate that carries on activities in Australia; or
(c) the Commonwealth, a State or a Territory.
42 Escalation of complaints made under industry codes etc.
(1) This clause applies if:
(a) a person has made a complaint under:
(i) an industry code registered under Part 4; or
(ii) an industry standard determined under Part 4; or
(iii) a designated content/hosting service provider
determination; and
(b) the complaint is about a particular matter; and
(c) the person could have made a complaint about the matter
under subclause 37(1), (2) or (3) or 38(1) or (2); and
(d) the complaint is referred to the ACMA under the code,
standard or determination.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Making of complaints to the ACMA Division 1
Clause 42
Broadcasting Services Act 1992 273
(2) This Part has effect as if the complaint mentioned in
paragraph (1)(a) had been made under subclause 37(1), (2) or (3)
or 38(1) or (2), as the case requires.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 2 Investigations by the ACMA
Clause 43
274 Broadcasting Services Act 1992
Division 2—Investigations by the ACMA
43 Investigation of complaints by the ACMA
(1) The ACMA must investigate a complaint under Division 1.
(2) Subclause (1) has effect subject to subclauses (3), (4) and (6).
(3) The ACMA need not investigate a complaint if:
(a) the ACMA is satisfied that the complaint is:
(i) frivolous; or
(ii) vexatious; or
(iii) not made in good faith; or
(b) the ACMA has reason to believe that the complaint was
made for the purpose, or for purposes that include the
purpose, of frustrating or undermining the effective
administration of this Schedule.
(4) The ACMA need not investigate, or continue to investigate, a
complaint about a matter if:
(a) a complaint about the matter has been, or could have been,
made under:
(i) an industry code registered under Part 4; or
(ii) an industry standard determined under Part 4; or
(iii) a designated content/hosting service provider
determination; and
(b) clause 42 does not apply to the first-mentioned complaint.
(5) The ACMA must notify the complainant of the results of an
investigation under this clause.
(6) The ACMA may terminate an investigation under this clause if it is
of the opinion that it does not have sufficient information to
conclude the investigation.
44 ACMA may investigate matters on its own initiative
The ACMA may investigate any of the following matters if the
ACMA thinks that it is desirable to do so:
(a) whether end-users in Australia can access prohibited content
or potential prohibited content provided by a content service;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Investigations by the ACMA Division 2
Clause 45
Broadcasting Services Act 1992 275
(b) whether a hosting service is hosting prohibited content or
potential prohibited content;
(c) whether end-users in Australia can access prohibited content
or potential prohibited content using a link provided by a
links service;
(d) whether a person has breached a designated content/hosting
service provider rule that applies to the person;
(e) whether a person has committed an offence against this
Schedule;
(f) whether a person has breached a civil penalty provision of
this Schedule;
(g) whether a participant in the content industry (within the
meaning of Part 4 of this Schedule) has breached a code
registered under that Part that is applicable to the participant.
45 Conduct of investigations
(1) An investigation under this Division is to be conducted as the
ACMA thinks fit.
(2) The ACMA may, for the purposes of an investigation, obtain
information from such persons, and make such inquiries, as it
thinks fit.
(3) This clause has effect subject to Part 13 of this Act (which confers
certain investigative powers on the ACMA).
46 Protection from civil proceedings
Civil proceedings do not lie against a person in respect of loss,
damage or injury of any kind suffered by another person because
of any of the following acts done in good faith:
(a) the making of a complaint under Division 1;
(b) the making of a statement to, or the giving of a document or
information to, the ACMA in connection with an
investigation under this Division.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 3 Action to be taken in relation to hosting services
Clause 47
276 Broadcasting Services Act 1992
Division 3—Action to be taken in relation to hosting
services
47 Action to be taken in relation to hosting services
Prohibited content
(1) If, in the course of an investigation under Division 2, the ACMA is
satisfied that:
(a) content hosted by a hosting service provider is prohibited
content; and
(b) the relevant hosting service has an Australian connection;
the ACMA must:
(c) if:
(i) the content does not consist of an eligible electronic
publication; and
(ii) the content has been classified RC or X 18+ by the
Classification Board;
give the hosting service provider a written notice (a final
take-down notice) directing the hosting service provider to
take such steps as are necessary to ensure that a type A
remedial situation exists in relation to the content; or
(d) if:
(i) the content does not consist of an eligible electronic
publication; and
(ii) the content has been classified R 18+ or MA 15+ by the
Classification Board;
give the hosting service provider a written notice (a final
take-down notice) directing the hosting service provider to
take such steps as are necessary to ensure that a type B
remedial situation exists in relation to the content; or
(e) if:
(i) the content consists of an eligible electronic publication;
and
(ii) the content has been classified RC, category 2 restricted
or category 1 restricted by the Classification Board;
give the hosting service provider a written notice (a final
take-down notice) directing the hosting service provider to
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Action to be taken in relation to hosting services Division 3
Clause 47
Broadcasting Services Act 1992 277
take such steps as are necessary to ensure that a type A
remedial situation exists in relation to the content.
Note 1: For type A remedial situation, see subclause (6).
Note 2: For type B remedial situation, see subclause (7).
Potential prohibited content
(2) If:
(a) in the course of an investigation under Division 2, the
ACMA is satisfied that:
(i) content hosted by a hosting service provider is potential
prohibited content; and
(ii) the relevant hosting service has an Australian
connection; and
(b) the ACMA is satisfied that, if the content were to be
classified by the Classification Board, there is a substantial
likelihood that:
(i) if the content does not consist of an eligible electronic
publication—the content would be classified RC or X
18+; or
(ii) if the content consists of an eligible electronic
publication—the content would be classified RC or
category 2 restricted;
the ACMA must:
(c) give the hosting service provider a written notice (an interim
take-down notice) directing the provider to take such steps as
are necessary to ensure that a type A remedial situation exists
in relation to the content until the ACMA notifies the hosting
service provider under subclause (4) of the Classification
Board’s classification of the content; and
(d) apply to the Classification Board under clause 22 for
classification of the content.
Note: For type A remedial situation, see subclause (6).
(3) If:
(a) in the course of an investigation under Division 2, the
ACMA is satisfied that:
(i) content hosted by a hosting service provider is potential
prohibited content; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 3 Action to be taken in relation to hosting services
Clause 47
278 Broadcasting Services Act 1992
(ii) the relevant hosting service has an Australian
connection; and
(b) the content does not consist of an eligible electronic
publication; and
(c) the ACMA is satisfied that, if the content were to be
classified by the Classification Board, there is a substantial
likelihood that the content would be classified R 18+ or MA
15+;
the ACMA must:
(d) give the hosting service provider a written notice (an interim
take-down notice) directing the provider to take such steps as
are necessary to ensure that a type B remedial situation exists
in relation to the content until the ACMA notifies the hosting
service provider under subclause (4) of the Classification
Board’s classification of the content; and
(e) apply to the Classification Board under clause 22 for
classification of the content.
Note: For type B remedial situation, see subclause (7).
(4) If, in response to an application made as required by subclause (2)
or (3), the ACMA is informed under paragraph 23(b) of the
classification of particular content, the ACMA must:
(a) give the relevant hosting service provider a written notice
setting out the classification; and
(b) in a case where:
(i) the content does not consist of an eligible electronic
publication; and
(ii) the effect of the classification is that the content is
prohibited content because it has been classified RC or
X 18+ by the Classification Board;
give the hosting service provider a written notice (a final
take-down notice) directing the provider to take such steps as
are necessary to ensure that a type A remedial situation exists
in relation to the content; and
(c) in a case where:
(i) the content does not consist of an eligible electronic
publication; and
(ii) the effect of the classification is that the content is
prohibited content because it has been classified R 18+
or MA 15+ by the Classification Board;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Action to be taken in relation to hosting services Division 3
Clause 47
Broadcasting Services Act 1992 279
give the hosting service provider a written notice (a final
take-down notice) directing the provider to take such steps as
are necessary to ensure that a type B remedial situation exists
in relation to the content; and
(d) in a case where:
(i) the content consists of an eligible electronic publication;
and
(ii) the effect of the classification is that the content is
prohibited content because it has been classified RC,
category 2 restricted or category 1 restricted by the
Classification Board;
give the hosting service provider a written notice (a final
take-down notice) directing the provider to take such steps as
are necessary to ensure that a type A remedial situation exists
in relation to the content.
Note 1: For type A remedial situation, see subclause (6).
Note 2: For type B remedial situation, see subclause (7).
(5) If the ACMA makes a decision under subclause (2) or (3) to apply
to the Classification Board for classification of content, the ACMA
must give the relevant hosting service provider a written notice
setting out the decision.
Type A remedial situation
(6) For the purposes of the application of this clause to a hosting
service provider, a type A remedial situation exists in relation to
content at a particular time if:
(a) the provider does not host the content; or
(b) the content is not provided by a content service provided to
the public (whether on payment of a fee or otherwise).
Type B remedial situation
(7) For the purposes of the application of this clause to a hosting
service provider, a type B remedial situation exists in relation to
content at a particular time if:
(a) the provider does not host the content; or
(b) the content is not provided by a content service provided to
the public (whether on payment of a fee or otherwise); or
(c) access to the content is subject to a restricted access system.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 3 Action to be taken in relation to hosting services
Clause 48
280 Broadcasting Services Act 1992
48 Revocation of interim take-down notices—voluntary withdrawal
of content
(1) If:
(a) an interim take-down notice relating to particular content is
applicable to a particular hosting service provider; and
(b) before the Classification Board classifies the content, the
provider:
(i) ceases to host the content; and
(ii) gives the ACMA a written undertaking not to host the
content;
the ACMA may:
(c) accept the undertaking; and
(d) revoke the interim take-down notice; and
(e) by written notice given to the Classification Board, determine
that the Classification Board is not required to comply with
clause 23 in relation to the classification of the content.
(2) If an interim take-down notice is revoked under this clause, the
ACMA must give the hosting service provider concerned a written
notice stating that the interim take-down notice has been revoked.
49 Revocation of final take-down notices—reclassification of content
(1) If:
(a) content has been classified by the Classification Board
(otherwise than because of subclause 24(1) or (2)); and
(b) a final take-down notice relating to the content is applicable
to a particular hosting service provider; and
(c) the Classification Board reclassifies the content; and
(d) as a result of the reclassification, the content ceases to be
prohibited content;
the ACMA must revoke the final take-down notice.
(2) If a final take-down notice is revoked under this clause, the ACMA
must give the hosting service provider concerned a written notice
stating that the final take-down notice has been revoked.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Action to be taken in relation to hosting services Division 3
Clause 50
Broadcasting Services Act 1992 281
50 Revocation of final take-down notices—reclassification of content
that consists of a film or a computer game
(1) If:
(a) content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the Classification Board reclassifies the film or computer
game under the Classification (Publications, Films and
Computer Games) Act 1995; and
(c) a final take-down notice relating to the content is applicable
to a particular hosting service provider; and
(d) as a result of the reclassification, the content ceases to be
prohibited content;
the ACMA must revoke the final take-down notice.
(2) If a final take-down notice is revoked under this clause, the ACMA
must give the hosting service provider concerned a written notice
stating that the final take-down notice has been revoked.
51 Revocation of final take-down notices—reclassification of a
corresponding print publication
(1) If:
(a) content consists of an eligible electronic publication; and
(b) the Classification Board reclassifies the corresponding print
publication under the Classification (Publications, Films and
Computer Games) Act 1995; and
(c) a final take-down notice relating to the content is applicable
to a particular hosting service provider; and
(d) as a result of the reclassification, the content ceases to be
prohibited content;
the ACMA must revoke the final take-down notice.
(2) If a final take-down notice is revoked under this clause, the ACMA
must give the hosting service provider concerned a written notice
stating that the final take-down notice has been revoked.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 3 Action to be taken in relation to hosting services
Clause 52
282 Broadcasting Services Act 1992
52 Anti-avoidance—special take-down notices
(1) If:
(a) an interim take-down notice or a final take-down notice
relating to particular content is applicable to a particular
hosting service provider; and
(b) the ACMA is satisfied that the hosting service provider is
hosting, or is proposing to host, content (the similar content)
that is the same as, or substantially similar to, the content
identified in the interim take-down notice or the final
take-down notice, as the case may be; and
(c) the ACMA is satisfied that the similar content is prohibited
content or potential prohibited content;
the ACMA may:
(d) if the interim take-down notice or final take-down notice, as
the case may be, was given under paragraph 47(1)(c), (1)(e),
(2)(c), (4)(b) or (4)(d) of this Schedule—give the hosting
service provider a written notice (a special take-down notice)
directing the provider to take all reasonable steps to ensure
that a type A remedial situation exists in relation to the
similar content at any time when the interim take-down
notice or final take-down notice, as the case may be, is in
force; or
(e) in any other case—give the hosting service provider a written
notice (a special take-down notice) directing the provider to
take all reasonable steps to ensure that a type B remedial
situation exists in relation to the similar content at any time
when the interim take-down notice or final take-down notice,
as the case may be, is in force.
Note 1: For type A remedial situation, see subclause (2).
Note 2: For type B remedial situation, see subclause (3).
Type A remedial situation
(2) For the purposes of the application of this clause to a hosting
service provider, a type A remedial situation exists in relation to
the similar content at a particular time if:
(a) the provider does not host the similar content; or
(b) the similar content is not provided by a content service
provided to the public (whether on payment of a fee or
otherwise).
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Action to be taken in relation to hosting services Division 3
Clause 53
Broadcasting Services Act 1992 283
Type B remedial situation
(3) For the purposes of the application of this clause to a hosting
service provider, a type B remedial situation exists in relation to
content at a particular time if:
(a) the provider does not host the similar content; or
(b) the similar content is not provided by a content service
provided to the public (whether on payment of a fee or
otherwise); or
(c) access to the similar content is subject to a restricted access
system.
53 Compliance with rules relating to prohibited content etc.
Interim take-down notice
(1) A hosting service provider must comply with an interim take-down
notice that applies to the provider as soon as practicable, and in any
event by 6 pm on the next business day, after the notice was given
to the provider.
Final take-down notice
(2) A hosting service provider must comply with a final take-down
notice that applies to the provider as soon as practicable, and in any
event by 6 pm on the next business day, after the notice was given
to the provider.
Special take-down notice
(3) A hosting service provider must comply with a special take-down
notice that applies to the provider as soon as practicable, and in any
event by 6 pm on the next business day, after the notice was given
to the provider.
(4) In proceedings relating to a contravention of subclause (3), it is a
defence if the hosting service provider proves:
(a) that the provider did not know; and
(b) that the provider could not, with reasonable diligence, have
ascertained;
that the relevant content was prohibited content or potential
prohibited content.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 3 Action to be taken in relation to hosting services
Clause 54
284 Broadcasting Services Act 1992
Note: In criminal proceedings, a defendant bears a legal burden in relation to
the matters in subclause (4)—see section 13.4 of the Criminal Code.
Undertaking
(5) A hosting service provider must comply with an undertaking given
by the provider and accepted under clause 48.
Designated content/hosting service provider rule
(6) Subclauses (1), (2), (3) and (5) are designated content/hosting
service provider rules.
54 Identification of content
Content may be identified in a notice under this Division:
(a) by setting out the content; or
(b) by describing the content; or
(c) in any other way.
55 Application of notices under this Division
If a notice under this Division relates to particular internet content,
the notice applies to the content only to the extent to which the
content is accessed, or available for access, from a website, or a
distinct part of a website, specified in the notice.
Note: For specification by class, see subsection 33(3AB) of the Acts
Interpretation Act 1901.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Action to be taken in relation to live content services Division 4
Clause 56
Broadcasting Services Act 1992 285
Division 4—Action to be taken in relation to live content
services
56 Action to be taken in relation to live content services
Prohibited content
(1) If, in the course of an investigation under Division 2, the ACMA is
satisfied that:
(a) live content provided by a live content service is prohibited
content; and
(b) the live content service has an Australian connection;
the ACMA must:
(c) if the content has been classified RC or X 18+ by the
Classification Board—give the live content service provider
a written notice (a final service-cessation notice) directing
the live content service provider to take such steps as are
necessary to ensure that a type A remedial situation exists in
relation to the live content service; or
(d) if the content has been classified R 18+ or MA 15+ by the
Classification Board—give the live content service provider
a written notice (a final service-cessation notice) directing
the live content service provider to take such steps as are
necessary to ensure that a type B remedial situation exists in
relation to the live content service.
Note 1: For type A remedial situation, see subclause (6).
Note 2: For type B remedial situation, see subclause (7).
Potential prohibited content
(2) If:
(a) in the course of an investigation under Division 2, the
ACMA is satisfied that:
(i) live content provided by a live content service is
potential prohibited content; and
(ii) the live content service has an Australian connection;
and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 4 Action to be taken in relation to live content services
Clause 56
286 Broadcasting Services Act 1992
(b) the ACMA is satisfied that, if the content were to be
classified by the Classification Board, there is a substantial
likelihood that the content would be classified RC or X 18+;
and
(c) the ACMA has:
(i) a recording of the content; or
(ii) a copy of such a recording;
the ACMA must:
(d) give the live content service provider a written notice (an
interim service-cessation notice) directing the provider to
take such steps as are necessary to ensure that a type A
remedial situation exists in relation to the live content service
until the ACMA notifies the live content provider under
subclause (4) of the Classification Board’s classification of
the content; and
(e) apply to the Classification Board under clause 22 for
classification of the content.
Note: For type A remedial situation, see subclause (6).
(3) If:
(a) in the course of an investigation under Division 2, the
ACMA is satisfied that:
(i) live content provided by a live content service is
potential prohibited content; and
(ii) the live content service has an Australian connection;
and
(b) the ACMA is satisfied that, if the content were to be
classified by the Classification Board, there is a substantial
likelihood that the content would be classified R 18+ or MA
15+; and
(c) the ACMA has:
(i) a recording of the content; or
(ii) a copy of such a recording;
the ACMA must:
(d) give the live content service provider a written notice (an
interim service-cessation notice) directing the provider to
take such steps as are necessary to ensure that a type B
remedial situation exists in relation to the live content service
until the ACMA notifies the live content provider under
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Action to be taken in relation to live content services Division 4
Clause 56
Broadcasting Services Act 1992 287
subclause (4) of the Classification Board’s classification of
the content; and
(e) apply to the Classification Board under clause 22 for
classification of the content.
Note: For type B remedial situation, see subclause (7).
(4) If, in response to an application made as required by subclause (2)
or (3), the ACMA is informed under paragraph 23(b) of the
classification of particular content, the ACMA must:
(a) give the relevant live content service provider a written
notice setting out the classification; and
(b) in a case where the effect of the classification is that the
content is prohibited content because it has been classified
RC or X 18+ by the Classification Board—give the live
content service provider a written notice (a final
service-cessation notice) directing the provider to take such
steps as are necessary to ensure that a type A remedial
situation exists in relation to the live content service; and
(c) in a case where the effect of the classification is that the
content is prohibited content because it has been classified R
18+ or MA 15+ by the Classification Board—give the live
content service provider a written notice (a final
service-cessation notice) directing the provider to take such
steps as are necessary to ensure that a type B remedial
situation exists in relation to the live content service.
Note 1: For type A remedial situation, see subclause (6).
Note 2: For type B remedial situation, see subclause (7).
(5) If the ACMA makes a decision under subclause (2) or (3) to apply
to the Classification Board under clause 22 for classification of
content, the ACMA must give the relevant live content service
provider a written notice setting out the decision.
Type A remedial situation
(6) For the purposes of the application of this clause to a live content
service provider, a type A remedial situation exists in relation to a
live content service if the provider does not provide the live
content service.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 4 Action to be taken in relation to live content services
Clause 57
288 Broadcasting Services Act 1992
Type B remedial situation
(7) For the purposes of the application of this clause to a live content
service provider, a type B remedial situation exists in relation to a
live content service if:
(a) the provider does not provide the live content service; or
(b) access to any R 18+ or MA 15+ content provided by the live
content service is subject to a restricted access system.
57 Undertaking—alternative to service-cessation notice
(1) If:
(a) in the course of an investigation under Division 2, the
ACMA is satisfied that:
(i) live content provided by a live content service is
prohibited content or potential prohibited content; and
(ii) the live content service has an Australian connection;
and
(b) apart from this subclause, the ACMA would be required to
take action under subclause 56(1), (2) or (3) in relation to the
content; and
(c) the live content service provider concerned gives the ACMA
a written undertaking relating to the live content service;
then:
(d) the ACMA may accept the undertaking; and
(e) if the ACMA accepts the undertaking—the ACMA is not
required to take action under subclause 56(1), (2) or (3) in
relation to the content.
(2) Subclause (1) has effect despite anything in clause 56.
58 Revocation of service-cessation notices—undertaking
(1) If:
(a) a final service-cessation notice or interim service-cessation
notice is applicable to a particular live content service
provider; and
(b) the provider gives the ACMA a written undertaking relating
to the live content service concerned;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Action to be taken in relation to live content services Division 4
Clause 59
Broadcasting Services Act 1992 289
the ACMA may:
(c) accept the undertaking; and
(d) revoke the final service-cessation notice or interim
service-cessation notice; and
(e) in the case of an interim service-cessation notice—by written
notice given to the Classification Board, determine that the
Classification Board is not required to comply with clause 23
in relation to the classification of the content concerned.
(2) If a final service-cessation notice or interim service-cessation
notice is revoked under this clause, the ACMA must give the live
content service provider concerned a written notice stating that the
notice has been revoked.
59 Revocation of final service-cessation notices—reclassification of
content
(1) If:
(a) content has been classified by the Classification Board
(otherwise than because of subclause 24(1) or (2)); and
(b) a final service-cessation notice is applicable to a particular
live content service provider; and
(c) the final service-cessation notice was given because the
content was prohibited content; and
(d) the Classification Board reclassifies the content; and
(e) as a result of the reclassification, the content ceases to be
prohibited content;
the ACMA must revoke the final service-cessation notice.
(2) If a final service-cessation notice is revoked under this clause, the
ACMA must give the live content service provider concerned a
written notice stating that the final service-cessation notice has
been revoked.
59A Anti-avoidance—special service-cessation notices
(1) If:
(a) an interim service-cessation notice or a final
service-cessation notice relating to a particular live content
service is applicable to a particular live content service
provider; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 4 Action to be taken in relation to live content services
Clause 59A
290 Broadcasting Services Act 1992
(b) the ACMA is satisfied that the live content service provider:
(i) is providing; or
(ii) is proposing to provide;
another live content service that is substantially similar to the
first-mentioned live content service; and
(c) the ACMA is satisfied that the other live content service:
(i) has provided; or
(ii) is providing; or
(iii) is likely to provide;
prohibited content or potential prohibited content;
the ACMA may:
(d) if the interim service-cessation notice or final
service-cessation notice, as the case may be, was given under
paragraph 56(1)(c), (2)(d) or (4)(b) of this Schedule—give
the live content service provider a written notice (a special
service-cessation notice) directing the provider to take all
reasonable steps to ensure that a type A remedial situation
exists in relation to the other live content service at any time
when the interim service-cessation notice or final
service-cessation notice, as the case may be, is in force; or
(e) in any other case—give the live content service provider a
written notice (a special service-cessation notice) directing
the provider to take all reasonable steps to ensure that a type
B remedial situation exists in relation to the other live content
service at any time when the interim service-cessation notice
or final service-cessation notice, as the case may be, is in
force.
Note 1: For type A remedial situation, see subclause (2).
Note 2: For type B remedial situation, see subclause (3).
Type A remedial situation
(2) For the purposes of the application of this clause to a live content
service provider, a type A remedial situation exists in relation to a
live content service if the provider does not provide the live
content service.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Action to be taken in relation to live content services Division 4
Clause 60
Broadcasting Services Act 1992 291
Type B remedial situation
(3) For the purposes of the application of this clause to a live content
service provider, a type B remedial situation exists in relation to a
live content service if:
(a) the provider does not provide the live content service; or
(b) access to any R 18+ or MA 15+ content provided by the live
content service is subject to a restricted access system.
60 Compliance with rules relating to prohibited content etc.
Interim service-cessation notice
(1) A live content service provider must comply with an interim
service-cessation notice that applies to the provider as soon as
practicable, and in any event by 6 pm on the next business day,
after the notice was given to the provider.
Final service-cessation notice
(2) A live content service provider must comply with a final
service-cessation notice that applies to the provider as soon as
practicable, and in any event by 6 pm on the next business day,
after the notice was given to the provider.
Special service-cessation notice
(2A) A live content service provider must comply with a special
service-cessation notice that applies to the provider as soon as
practicable, and in any event by 6 pm on the next business day,
after the notice was given to the provider.
Undertaking
(3) A live content service provider must comply with an undertaking
given by the provider and accepted under clause 57 or 58.
Designated content/hosting service provider rule
(4) Subclauses (1), (2), (2A) and (3) are designated content/hosting
service provider rules.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 4 Action to be taken in relation to live content services
Clause 61
292 Broadcasting Services Act 1992
61 Identification of content
Content may be identified in a notice under this Division:
(a) by setting out the content; or
(b) by describing the content; or
(c) in any other way.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Action to be taken in relation to links services Division 5
Clause 62
Broadcasting Services Act 1992 293
Division 5—Action to be taken in relation to links services
62 Action to be taken in relation to links services
Prohibited content
(1) If, in the course of an investigation under Division 2, the ACMA is
satisfied that:
(a) end-users in Australia can access content using a link
provided by a links service; and
(b) the content is prohibited content; and
(c) the links service has an Australian connection;
the ACMA must:
(d) if:
(i) the content does not consist of an eligible electronic
publication; and
(ii) the content has been classified RC or X 18+ by the
Classification Board;
give the links service provider a written notice (a final
link-deletion notice) directing the links service provider to
take such steps as are necessary to ensure that a type A
remedial situation exists in relation to the content; or
(e) if:
(i) the content does not consist of an eligible electronic
publication; and
(ii) the content has been classified R 18+ or MA 15+ by the
Classification Board;
give the links service provider a written notice (a final
link-deletion notice) directing the links service provider to
take such steps as are necessary to ensure that a type B
remedial situation exists in relation to the content; or
(f) if:
(i) the content consists of an eligible electronic publication;
and
(ii) the content has been classified RC, category 2 restricted
or category 1 restricted by the Classification Board;
give the links service provider a written notice (a final
link-deletion notice) directing the links service provider to
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 5 Action to be taken in relation to links services
Clause 62
294 Broadcasting Services Act 1992
take such steps as are necessary to ensure that a type A
remedial situation exists in relation to the content.
Note 1: For type A remedial situation, see subclause (6).
Note 2: For type B remedial situation, see subclause (7).
Potential prohibited content
(2) If:
(a) in the course of an investigation under Division 2, the
ACMA is satisfied that:
(i) end-users in Australia can access content using a link
provided by a links service; and
(ii) the content is potential prohibited content; and
(iii) the links service has an Australian connection; and
(b) the ACMA is satisfied that, if the content were to be
classified by the Classification Board, there is a substantial
likelihood that:
(i) if the content does not consist of an eligible electronic
publication—the content would be classified RC or X
18+; or
(ii) if the content consists of an eligible electronic
publication—the content would be classified RC or
category 2 restricted;
the ACMA must:
(c) give the links service provider a written notice (an interim
link-deletion notice) directing the provider to take such steps
as are necessary to ensure that a type A remedial situation
exists in relation to the content until the ACMA notifies the
links service provider under subclause (4) of the
Classification Board’s classification of the content; and
(d) apply to the Classification Board under clause 22 for
classification of the content.
Note: For type A remedial situation, see subclause (6).
(3) If:
(a) in the course of an investigation under Division 2, the
ACMA is satisfied that:
(i) end-users in Australia can access content using a link
provided by a links service; and
(ii) the content is potential prohibited content; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Action to be taken in relation to links services Division 5
Clause 62
Broadcasting Services Act 1992 295
(iii) the links service has an Australian connection; and
(b) the content does not consist of an eligible electronic
publication; and
(c) the ACMA is satisfied that, if the content were to be
classified by the Classification Board, there is a substantial
likelihood that the content would be classified R 18+ or MA
15+;
the ACMA must:
(d) give the links service provider a written notice (an interim
link-deletion notice) directing the provider to take such steps
as are necessary to ensure that a type B remedial situation
exists in relation to the content until the ACMA notifies the
links service provider under subclause (4) of the
Classification Board’s classification of the content; and
(e) apply to the Classification Board under clause 22 for
classification of the content.
Note: For type B remedial situation, see subclause (7).
(4) If, in response to an application made as required by subclause (2)
or (3), the ACMA is informed under paragraph 23(b) of the
classification of particular content, the ACMA must:
(a) give the relevant links service provider a written notice
setting out the classification; and
(b) in a case where:
(i) the content does not consist of an eligible electronic
publication; and
(ii) the effect of the classification is that the content is
prohibited content because it has been classified RC or
X 18+ by the Classification Board;
give the links service provider a written notice (a final
link-deletion notice) directing the provider to take such steps
as are necessary to ensure that a type A remedial situation
exists in relation to the content; and
(c) in a case where:
(i) the content does not consist of an eligible electronic
publication; and
(ii) the effect of the classification is that the content is
prohibited content because it has been classified R 18+
or MA 15+ by the Classification Board;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 5 Action to be taken in relation to links services
Clause 62
296 Broadcasting Services Act 1992
give the links service provider a written notice (a final
link-deletion notice) directing the provider to take such steps
as are necessary to ensure that a type B remedial situation
exists in relation to the content; and
(d) in a case where:
(i) the content consists of an eligible electronic publication;
and
(ii) the effect of the classification is that the content is
prohibited content because it has been classified RC,
category 2 restricted or category 1 restricted by the
Classification Board;
give the links service provider a written notice (a final
link-deletion notice) directing the provider to take such steps
as are necessary to ensure that a type A remedial situation
exists in relation to the content.
Note 1: For type A remedial situation, see subclause (6).
Note 2: For type B remedial situation, see subclause (7).
(5) If the ACMA makes a decision under subclause (2) or (3) to apply
to the Classification Board under clause 22 for classification of
content, the ACMA must give the relevant links service provider a
written notice setting out the decision.
Type A remedial situation
(6) For the purposes of the application of this clause to a links service
provider, a type A remedial situation exists in relation to particular
content if:
(a) the provider ceases to provide a link to the content using the
links service concerned; or
(b) the content is not provided by a content service provided to
the public (whether on payment of a fee or otherwise).
Type B remedial situation
(7) For the purposes of the application of this clause to a links service
provider, a type B remedial situation exists in relation to particular
content if:
(a) the provider ceases to provide a link to the content using the
links service concerned; or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Action to be taken in relation to links services Division 5
Clause 63
Broadcasting Services Act 1992 297
(b) the content is not provided by a content service provided to
the public (whether on payment of a fee or otherwise); or
(c) access to the content is subject to a restricted access system.
63 Revocation of interim link-deletion notices—voluntary deletion of
link
(1) If:
(a) an interim link-deletion notice relating to a link to particular
content is applicable to a particular links service provider;
and
(b) before the Classification Board classifies the content, the
provider:
(i) ceases to provide a link to the content; and
(ii) gives the ACMA a written undertaking not to provide a
link to the content;
the ACMA may:
(c) accept the undertaking; and
(d) revoke the interim link-deletion notice; and
(e) by written notice given to the Classification Board, determine
that the Classification Board is not required to comply with
clause 23 in relation to the classification of the content.
(2) If an interim link-deletion notice is revoked under this clause, the
ACMA must give the links service provider concerned a written
notice stating that the interim link-deletion notice has been
revoked.
64 Revocation of final link-deletion notices—reclassification of
content
(1) If:
(a) content has been classified by the Classification Board
(otherwise than because of subclause 24(1) or (2)); and
(b) a final link-deletion notice relating to a link to the content is
applicable to a particular links service provider; and
(c) the Classification Board reclassifies the content; and
(d) as a result of the reclassification, the content ceases to be
prohibited content;
the ACMA must revoke the final link-deletion notice.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 5 Action to be taken in relation to links services
Clause 65
298 Broadcasting Services Act 1992
(2) If a final link-deletion notice is revoked under this clause, the
ACMA must give the links service provider concerned a written
notice stating that the final link-deletion notice has been revoked.
65 Revocation of final link-deletion notices—reclassification of
content that consists of a film or a computer game
(1) If:
(a) content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the Classification Board reclassifies the film or computer
game under the Classification (Publications, Films and
Computer Games) Act 1995; and
(c) a final link-deletion notice relating to a link to the content is
applicable to a particular links service provider; and
(d) as a result of the reclassification, the content ceases to be
prohibited content;
the ACMA must revoke the final link-deletion notice.
(2) If a final link-deletion notice is revoked under this clause, the
ACMA must give the links service provider concerned a written
notice stating that the final link-deletion notice has been revoked.
66 Revocation of final link-deletion notices—reclassification of a
corresponding print publication
(1) If:
(a) content consists of an eligible electronic publication; and
(b) the Classification Board reclassifies the corresponding print
publication under the Classification (Publications, Films and
Computer Games) Act 1995; and
(c) a final link-deletion notice relating to a link to the content is
applicable to a particular links service provider; and
(d) as a result of the reclassification, the content ceases to be
prohibited content;
the ACMA must revoke the final link-deletion notice.
(2) If a final link-deletion notice is revoked under this clause, the
ACMA must give the links service provider concerned a written
notice stating that the final link-deletion notice has been revoked.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Action to be taken in relation to links services Division 5
Clause 67
Broadcasting Services Act 1992 299
67 Anti-avoidance—special link-deletion notices
(1) If:
(a) an interim link-deletion notice or a final link-deletion notice
relating to particular content is applicable to a particular links
service provider; and
(b) the ACMA is satisfied that the links service provider is
providing, or is proposing to provide, a link to content (the
similar content) that is the same as, or substantially similar
to, the content identified in the interim link-deletion notice or
the final link-deletion notice, as the case may be; and
(c) the ACMA is satisfied that the similar content is prohibited
content or potential prohibited content;
the ACMA may:
(d) if the interim link-deletion notice or the final link-deletion
notice, as the case may be, was given under
paragraph 62(1)(d), (1)(f), (2)(c), (4)(b) or (4)(d)—give the
links service provider a written notice (a special link-deletion
notice) directing the provider to take all reasonable steps to
ensure that a type A remedial situation exists in relation to
the similar content at any time when the interim link-deletion
notice or the final link-deletion notice, as the case may be, is
in force; or
(e) in any other case—give the links service provider a written
notice (a special link-deletion notice) directing the provider
to take all reasonable steps to ensure that a type B remedial
situation exists in relation to the similar content at any time
when the interim link-deletion notice or the final
link-deletion notice, as the case may be, is in force.
Note 1: For type A remedial situation, see subclause (2).
Note 2: For type B remedial situation, see subclause (3).
Type A remedial situation
(2) For the purposes of the application of this clause to a links service
provider, a type A remedial situation exists in relation to the
similar content if:
(a) the provider ceases to provide a link to the similar content
using the links service concerned; or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 5 Action to be taken in relation to links services
Clause 68
300 Broadcasting Services Act 1992
(b) the similar content is not provided by a content service
provided to the public (whether on payment of a fee or
otherwise).
Type B remedial situation
(3) For the purposes of the application of this clause to a links service
provider, a type B remedial situation exists in relation to the
similar content if:
(a) the provider ceases to provide a link to the similar content
using the links service concerned; or
(b) the similar content is not provided by a content service
provided to the public (whether on payment of a fee or
otherwise); or
(c) access to the similar content is subject to a restricted access
system.
68 Compliance with rules relating to prohibited content etc.
Interim link-deletion notice
(1) A links service provider must comply with an interim link-deletion
notice that applies to the provider as soon as practicable, and in any
event by 6 pm on the next business day, after the notice was given
to the provider.
Final link-deletion notice
(2) A links service provider must comply with a final link-deletion
notice that applies to the provider as soon as practicable, and in any
event by 6 pm on the next business day, after the notice was given
to the provider.
Special link-deletion notice
(3) A links service provider must comply with a special link-deletion
notice that applies to the provider as soon as practicable, and in any
event by 6 pm on the next business day, after the notice was given
to the provider.
(4) In proceedings relating to a contravention of subclause (3), it is a
defence if the links service provider proves:
(a) that the provider did not know; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Action to be taken in relation to links services Division 5
Clause 68
Broadcasting Services Act 1992 301
(b) that the provider could not, with reasonable diligence, have
ascertained;
that the relevant content was prohibited content or potential
prohibited content.
Note: In criminal proceedings, a defendant bears a legal burden in relation to
the matters in subclause (4)—see section 13.4 of the Criminal Code.
Undertaking
(5) A links service provider must comply with an undertaking given by
the provider and accepted under clause 63.
Designated content/hosting service provider rule
(6) Subclauses (1), (2), (3) and (5) are designated content/hosting
service provider rules.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 6 Law enforcement agencies
Clause 69
302 Broadcasting Services Act 1992
Division 6—Law enforcement agencies
69 Referral of matters to law enforcement agencies
(1) If, in the course of an investigation under Division 2, the ACMA is
satisfied that:
(a) content is prohibited content or potential prohibited content;
and
(b) the content is of a sufficiently serious nature to warrant
referral to a law enforcement agency;
the ACMA must notify the content to:
(c) a member of an Australian police force; or
(d) if there is an arrangement between the ACMA and the chief
(however described) of an Australian police force under
which the ACMA is authorised to notify the content to
another person or body—that other person or body.
Referral to law enforcement agency
(2) The manner in which content may be notified under
paragraph (1)(c) to a member of an Australian police force includes
(but is not limited to) a manner ascertained in accordance with an
arrangement between the ACMA and the chief (however
described) of the police force concerned.
(3) If a member of an Australian police force is notified of particular
content under this clause, the member may notify the content to a
member of another law enforcement agency.
(4) This clause does not limit the ACMA’s powers to refer other
matters to a member of an Australian police force.
Previous referral to law enforcement agency under Schedule 5
(5) The ACMA is not required to notify particular content under
subclause (1) if the ACMA has already notified the content under
paragraph 40(1)(a) of Schedule 5.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Complaints to, and investigations by, the ACMA Part 3
Law enforcement agencies Division 6
Clause 70
Broadcasting Services Act 1992 303
70 Deferral of action in order to avoid prejudicing a criminal
investigation—hosting services
(1) If:
(a) in the course of an investigation under Division 2, the
ACMA is satisfied that:
(i) content hosted by a hosting service provider is
prohibited content or potential prohibited content; and
(ii) the relevant hosting service has an Australian
connection; and
(b) apart from this subclause, the ACMA would be required to
take action under subclause 47(1), (2) or (3) in relation to the
content; and
(c) a member of an Australian police force satisfies the ACMA
that the taking of that action should be deferred until the end
of a particular period in order to avoid prejudicing a criminal
investigation;
the ACMA may defer taking that action until the end of that
period.
(2) Subclause (1) has effect despite anything in clause 47.
71 Deferral of action in order to avoid prejudicing a criminal
investigation—live content services
(1) If:
(a) in the course of an investigation under Division 2, the
ACMA is satisfied that:
(i) live content provided by a live content service is
potential prohibited content; and
(ii) the live content service has an Australian connection;
and
(b) apart from this subclause, the ACMA would be required to
take action under subclause 56(1), (2) or (3) in relation to the
content; and
(c) a member of an Australian police force satisfies the ACMA
that the taking of that action should be deferred until the end
of a particular period in order to avoid prejudicing a criminal
investigation;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 3 Complaints to, and investigations by, the ACMA
Division 6 Law enforcement agencies
Clause 72
304 Broadcasting Services Act 1992
the ACMA may defer taking that action until the end of that
period.
(2) Subclause (1) has effect despite anything in clause 56.
72 Deferral of action in order to avoid prejudicing a criminal
investigation—links services
(1) If:
(a) in the course of an investigation under Division 2, the
ACMA is satisfied that:
(i) end-users in Australia can access content using a link
provided by a links service; and
(ii) the content is potential prohibited content; and
(iii) the links service has an Australian connection; and
(b) apart from this subclause, the ACMA would be required to
take action under subclause 62(1), (2) or (3) in relation to the
link; and
(c) a member of an Australian police force satisfies the ACMA
that the taking of that action should be deferred until the end
of a particular period in order to avoid prejudicing a criminal
investigation;
the ACMA may defer taking that action until the end of that
period.
(2) Subclause (1) has effect despite anything in clause 62.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Industry codes and industry standards Part 4
Simplified outline Division 1
Clause 73
Broadcasting Services Act 1992 305
Part 4—Industry codes and industry standards
Division 1—Simplified outline
73 Simplified outline
The following is a simplified outline of this Part:
• Bodies and associations that represent sections of the content
industry may develop industry codes.
• Industry codes may be registered by the ACMA.
• Compliance with an industry code is voluntary unless the
ACMA directs a particular participant in the content industry
to comply with the code.
• The ACMA has a reserve power to make an industry standard
if there are no industry codes or if an industry code is
deficient.
• Compliance with industry standards is mandatory.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 4 Industry codes and industry standards
Division 2 Interpretation
Clause 74
306 Broadcasting Services Act 1992
Division 2—Interpretation
74 Industry codes
For the purposes of this Part, an industry code is a code developed
under this Part (whether or not in response to a request under this
Part).
75 Industry standards
For the purposes of this Part, an industry standard is a standard
determined under this Part.
76 Content activity
For the purposes of this Part, a content activity is an activity that
consists of:
(a) providing a hosting service that has an Australian connection;
or
(b) providing a live content service that has an Australian
connection; or
(c) providing a links service that has an Australian connection;
or
(d) providing a commercial content service that has an
Australian connection.
77 Sections of the content industry
(1) For the purposes of this Part, sections of the content industry are
to be ascertained in accordance with this clause.
(2) For the purposes of this Part, each of the following groups is a
section of the content industry:
(a) hosting service providers, where the relevant hosting services
have an Australian connection;
(b) live content service providers, where the relevant live content
services have an Australian connection;
(c) links service providers, where the relevant links services
have an Australian connection;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Industry codes and industry standards Part 4
Interpretation Division 2
Clause 78
Broadcasting Services Act 1992 307
(d) commercial content service providers, where the relevant
commercial content services have an Australian connection.
78 Participants in a section of the content industry
For the purposes of this Part, if a person is a member of a group
that constitutes a section of the content industry, the person is a
participant in that section of the content industry.
79 Designated body
The Minister may, by legislative instrument, declare that a
specified body or association is the designated body for the
purposes of this Part. The declaration has effect accordingly.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 4 Industry codes and industry standards
Division 3 General principles relating to industry codes and industry standards
Clause 80
308 Broadcasting Services Act 1992
Division 3—General principles relating to industry codes
and industry standards
80 Statement of regulatory policy
(1) The Parliament intends that bodies or associations that the ACMA
is satisfied represent sections of the content industry should
develop codes (industry codes) that are to apply to participants in
the respective sections of the industry in relation to their content
activities.
(2) The Parliament intends that the ACMA should make reasonable
efforts to ensure that, for each section of the content industry,
either:
(a) an industry code is registered under this Part within 6 months
after the commencement of this Schedule; or
(b) an industry standard is registered under this Part within 9
months after the commencement of this Schedule.
81 Matters that must be dealt with by industry codes and industry
standards—commercial content providers
(1) The Parliament intends that, for the commercial content service
provider section of the content industry, there should be:
(a) an industry code or an industry standard that deals with; or
(b) an industry code and an industry standard that together deal
with;
each of the following matters:
(c) the engagement of trained content assessors by commercial
content service providers;
(d) ensuring that content (other than live content or content that
consists of an eligible electronic publication) that:
(i) has not been classified by the Classification Board; and
(ii) would, if it were classified by the Classification Board,
be substantially likely to be classified RC, X 18+, R 18+
or MA 15+ by the Classification Board;
is not provided by commercial content services (other than
news services or current affairs services) unless a trained
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Industry codes and industry standards Part 4
General principles relating to industry codes and industry standards Division 3
Clause 81
Broadcasting Services Act 1992 309
content assessor has assessed the content for the purposes of
categorising the content as:
(iii) content that would, if it were classified by the
Classification Board, be substantially likely to be
classified RC by the Classification Board; or
(iv) content that would, if it were classified by the
Classification Board, be substantially likely to be
classified X 18+ by the Classification Board; or
(v) content that would, if it were classified by the
Classification Board, be substantially likely to be
classified R 18+ by the Classification Board; or
(vi) content that would, if it were classified by the
Classification Board, be substantially likely to be
classified MA 15+ by the Classification Board;
(e) ensuring that live content is not provided by commercial
content services (other than news services or current affairs
services) unless:
(i) there is no reasonable likelihood that the live content
will be of a kind that would, if it were classified by the
Classification Board, be substantially likely to be
classified RC, X 18+, R 18+ or MA 15+ by the
Classification Board; or
(ii) a trained content assessor has given advice to the
relevant commercial content service provider about
whether the live content is likely to be of a kind that
would, if it were classified by the Classification Board,
be substantially likely to be classified RC, X 18+, R 18+
or MA 15+ by the Classification Board;
(f) ensuring that content that consists of an eligible electronic
publication that:
(i) has not been classified by the Classification Board; and
(ii) would, if it were classified by the Classification Board,
be substantially likely to be classified RC or category 2
restricted by the Classification Board;
is not provided by commercial content services (other than
news services or current affairs services) unless a trained
content assessor has assessed the content for the purposes of
categorising the content as:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 4 Industry codes and industry standards
Division 3 General principles relating to industry codes and industry standards
Clause 82
310 Broadcasting Services Act 1992
(iii) content that would, if it were classified by the
Classification Board, be substantially likely to be
classified RC by the Classification Board; or
(iv) content that would, if it were classified by the
Classification Board, be substantially likely to be
classified category 2 restricted by the Classification
Board.
Note: The classification of an eligible electronic publication is the same as
the classification of the corresponding print publication—see
clause 24.
(2) For the purposes of paragraphs (1)(d), (e) and (f), it is to be
assumed that this Schedule authorised the Classification Board to
classify the content concerned.
Codes and standards not limited
(3) This clause does not limit the matters that may be dealt with by
industry codes and industry standards.
82 Examples of matters that may be dealt with by industry codes
and industry standards
(1) This clause sets out examples of matters that may be dealt with by
industry codes and industry standards.
(2) The applicability of a particular example will depend on which
section of the content industry is involved.
(3) The examples are as follows:
(a) procedures to be followed in order to deal with complaints
about matters, where the complainant could have made a
complaint about the same matter under subclause 37(1), (2)
or (3) or 38(1) or (2);
(b) telling persons about their rights to make complaints;
(c) procedures to be followed in order to assist persons to make
complaints;
(d) the referral to the ACMA of complaints about matters,
where:
(i) the complainant could have made a complaint about the
same matter under subclause 37(1), (2) or (3) or 38(1)
or (2); and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Industry codes and industry standards Part 4
General principles relating to industry codes and industry standards Division 3
Clause 82
Broadcasting Services Act 1992 311
(ii) the complainant is dissatisfied with the way in which
the complaint was dealt with under the code or standard;
(e) advice about the reasons for content having a particular
classification;
(f) procedures directed towards the achievement of the objective
of ensuring that, in the event that a commercial content
service provider becomes aware that:
(i) prohibited content; or
(ii) potential prohibited content;
is or was delivered to, or made available for access by, an
end-user of a commercial content service provided by
another commercial content service provider, the other
commercial content service provider is told about the
prohibited content or the potential prohibited content, as the
case may be;
(g) promoting awareness of the safety issues associated with
commercial content services or live content services;
(h) procedures to be followed in order to deal with safety issues
associated with commercial content services that are chat
services;
(i) procedures to be followed in order to assist parents and
responsible adults to deal with safety issues associated with
children’s use of commercial content services that are chat
services;
(j) giving parents and responsible adults information about how
to supervise and control children’s access to content provided
by commercial content services or live content services;
(k) procedures to be followed in order to assist parents and
responsible adults to supervise and control children’s access
to content provided by commercial content services or live
content services;
(l) procedures to be followed in order to inform producers of
content provided by commercial content services or live
content services about the legal responsibilities of
commercial content service providers in relation to that
content;
(m) the making and retention of records of content provided by a
commercial content service or a live content service;
(n) the making and retention of recordings of live content
provided by a live content service;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 4 Industry codes and industry standards
Division 3 General principles relating to industry codes and industry standards
Clause 83
312 Broadcasting Services Act 1992
(o) procedures directed towards the achievement of the objective
of ensuring that, in the event that new content services or live
content services are developed that could put at risk the
safety of children who are end-users of the services, the
ACMA is informed about those services.
83 Escalation of complaints
(1) This clause applies if an industry code or industry standard deals
with the matter referred to in paragraph 82(3)(a).
(2) The industry code or industry standard, as the case may be, must
also deal with the matter referred to in paragraph 82(3)(d).
84 Collection of personal information
(1) This clause applies to a provision of an industry code or industry
standard if the provision deals with the making and retention of:
(a) records of content provided by a content service; or
(b) recordings of live content provided by a live content service.
(2) The provision must not authorise the collection of personal
information (within the meaning of the Privacy Act 1988) about an
end-user of a content service.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Industry codes and industry standards Part 4
Industry codes Division 4
Clause 85
Broadcasting Services Act 1992 313
Division 4—Industry codes
85 Registration of industry codes
(1) This clause applies if:
(a) the ACMA is satisfied that a body or association represents a
particular section of the content industry; and
(b) that body or association develops an industry code that
applies to participants in that section of the industry and deals
with one or more matters relating to the content activities of
those participants; and
(c) the body or association gives a copy of the code to the
ACMA; and
(d) the ACMA is satisfied that:
(i) to the extent to which the code deals with one or more
matters of substantial relevance to the community—the
code provides appropriate community safeguards for
that matter or those matters; and
(ii) to the extent to which the code deals with one or more
matters that are not of substantial relevance to the
community—the code deals with that matter or those
matters in an appropriate manner; and
(e) the ACMA is satisfied that, before giving the copy of the
code to the ACMA:
(i) the body or association published a draft of the code and
invited members of the public to make submissions to
the body or association about the draft within a
specified period; and
(ii) the body or association gave consideration to any
submissions that were received from members of the
public within that period; and
(f) the ACMA is satisfied that, before giving the copy of the
code to the ACMA:
(i) the body or association published a draft of the code and
invited participants in that section of the industry to
make submissions to the body or association about the
draft within a specified period; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 4 Industry codes and industry standards
Division 4 Industry codes
Clause 86
314 Broadcasting Services Act 1992
(ii) the body or association gave consideration to any
submissions that were received from participants in that
section of the industry within that period; and
(g) the ACMA is satisfied that the designated body has been
consulted about the development of the code.
Note: Designated body is defined by clause 79.
(2) The ACMA must register the code by including it in the Register
of industry codes kept under clause 101.
(3) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must
run for at least 30 days.
(4) If:
(a) an industry code (the new code) is registered under this Part;
and
(b) the new code is expressed to replace another industry code;
the other code ceases to be registered under this Part when the new
code is registered.
86 ACMA may request codes
(1) If the ACMA is satisfied that a body or association represents a
particular section of the content industry, the ACMA may, by
written notice given to the body or association, request the body or
association to:
(a) develop an industry code that applies to participants in that
section of the industry and deals with one or more specified
matters relating to the content activities of those participants;
and
(b) give the ACMA a copy of the code within the period
specified in the notice.
(2) The period specified in a notice under subclause (1) must run for at
least 120 days.
(3) The ACMA must not make a request under subclause (1) in
relation to a particular section of the content industry unless the
ACMA is satisfied that:
(a) the development of the code is necessary or convenient in
order to:
(i) provide appropriate community safeguards; or
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Industry codes and industry standards Part 4
Industry codes Division 4
Clause 87
Broadcasting Services Act 1992 315
(ii) otherwise deal with the performance or conduct of
participants in that section of the industry; and
(b) in the absence of the request, it is unlikely that an industry
code would be developed within a reasonable period.
(4) The ACMA may vary a notice under subclause (1) by extending
the period specified in the notice.
(5) Subclause (4) does not limit the application of subsection 33(3) of
the Acts Interpretation Act 1901.
(6) A notice under subclause (1) may specify indicative targets for
achieving progress in the development of the code (for example, a
target of 60 days to develop a preliminary draft of the code).
87 Publication of notice where no body or association represents a
section of the content industry
(1) If the ACMA is satisfied that a particular section of the content
industry is not represented by a body or association, the ACMA
may publish a notice on the ACMA’s website:
(a) stating that, if such a body or association were to come into
existence within a specified period, the ACMA would be
likely to give a notice to that body or association under
subclause 86(1); and
(b) setting out the matter or matters relating to the content
activities of those providers that would be likely to be
specified in the subclause 86(1) notice.
(2) The period specified in a notice under subclause (1) must run for at
least 60 days.
88 Replacement of industry codes
(1) Changes to an industry code are to be achieved by replacing the
code instead of varying the code.
(2) If the replacement code differs only in minor respects from the
original code, clause 85 has effect, in relation to the registration of
the code, as if paragraphs 85(1)(e) and (f) of this Schedule had not
been enacted.
Note: Paragraphs 85(1)(e) and (f) deal with submissions about draft codes.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 4 Industry codes and industry standards
Division 4 Industry codes
Clause 89
316 Broadcasting Services Act 1992
89 Compliance with industry codes
(1) If:
(a) a person is a participant in a particular section of the content
industry; and
(b) the ACMA is satisfied that the person has contravened, or is
contravening, an industry code that:
(i) is registered under this Part; and
(ii) applies to participants in that section of the industry;
the ACMA may, by written notice given to the person, direct the
person to comply with the industry code.
(2) A person must comply with a direction under subclause (1).
(3) Subclause (2) is a designated content/hosting service provider rule.
Note: For enforcement, see Part 6 of this Schedule.
90 Formal warnings—breach of industry codes
(1) This clause applies to a person who is a participant in a particular
section of the content industry.
(2) The ACMA may issue a formal warning if the person contravenes
an industry code registered under this Part.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Industry codes and industry standards Part 4
Industry standards Division 5
Clause 91
Broadcasting Services Act 1992 317
Division 5—Industry standards
91 ACMA may determine an industry standard if a request for an
industry code is not complied with
(1) This clause applies if:
(a) the ACMA has made a request under subclause 86(1) in
relation to the development of a code that is to:
(i) apply to participants in a particular section of the
content industry; and
(ii) deal with one or more matters relating to the content
activities of those participants; and
(b) any of the following conditions is satisfied:
(i) the request is not complied with;
(ii) if indicative targets for achieving progress in the
development of the code were specified in the notice of
request—any of those indicative targets were not met;
(iii) the request is complied with, but the ACMA
subsequently refuses to register the code; and
(c) the ACMA is satisfied that it is necessary or convenient for
the ACMA to determine a standard in order to:
(i) provide appropriate community safeguards in relation to
that matter or those matters; or
(ii) otherwise regulate adequately participants in that
section of the industry in relation to that matter or those
matters.
(2) The ACMA may, by legislative instrument, determine a standard
that applies to participants in that section of the industry and deals
with that matter or those matters. A standard under this subclause
is to be known as an industry standard.
(3) Before determining an industry standard under this clause, the
ACMA must consult the body or association to whom the request
mentioned in paragraph (1)(a) was made.
(4) The Minister may, by legislative instrument, give the ACMA a
written direction as to the exercise of its powers under this clause.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 4 Industry codes and industry standards
Division 5 Industry standards
Clause 92
318 Broadcasting Services Act 1992
92 ACMA may determine industry standard where no industry
body or association formed
(1) This clause applies if:
(a) the ACMA is satisfied that a particular section of the content
industry is not represented by a body or association; and
(b) the ACMA has published a notice under subclause 87(1); and
(c) that notice:
(i) states that, if such a body or association were to come
into existence within a particular period, the ACMA
would be likely to give a notice to that body or
association under subclause 86(1); and
(ii) sets out one or more matters relating to the content
activities of participants in that section of the industry;
and
(d) no such body or association comes into existence within that
period; and
(e) the ACMA is satisfied that it is necessary or convenient for
the ACMA to determine a standard in order to:
(i) provide appropriate community safeguards in relation to
that matter or those matters; or
(ii) otherwise regulate adequately participants in that
section of the industry in relation to that matter or those
matters.
(2) The ACMA may, by legislative instrument, determine a standard
that applies to participants in that section of the industry and deals
with that matter or those matters. A standard under this subclause
is to be known as an industry standard.
(3) The Minister may, by legislative instrument, give the ACMA a
written direction as to the exercise of its powers under this clause.
93 ACMA may determine industry standards—total failure of
industry codes
(1) This clause applies if:
(a) an industry code that:
(i) applies to participants in a particular section of the
content industry; and
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Industry codes and industry standards Part 4
Industry standards Division 5
Clause 93
Broadcasting Services Act 1992 319
(ii) deals with one or more matters relating to the content
activities of those participants;
has been registered under this Part for at least 180 days; and
(b) the ACMA is satisfied that the code is totally deficient (as
defined by subclause (6)); and
(c) the ACMA has given the body or association that developed
the code a written notice requesting that deficiencies in the
code be addressed within a specified period; and
(d) that period ends and the ACMA is satisfied that it is
necessary or convenient for the ACMA to determine a
standard that applies to participants in that section of the
industry and deals with that matter or those matters.
(2) The period specified in a notice under paragraph (1)(c) must run
for at least 30 days.
(3) The ACMA may, by legislative instrument, determine a standard
that applies to participants in that section of the industry and deals
with that matter or those matters. A standard under this subclause
is to be known as an industry standard.
(4) If the ACMA is satisfied that a body or association represents that
section of the industry, the ACMA must consult the body or
association before determining an industry standard under
subclause (3).
(5) The industry code ceases to be registered under this Part on the day
on which the industry standard comes into force.
(6) For the purposes of this clause, an industry code that applies to
participants in a particular section of the content industry and deals
with one or more matters relating to the content activities of those
participants is totally deficient if, and only if:
(a) the code is not operating to provide appropriate community
safeguards in relation to that matter or those matters; or
(b) the code is not otherwise operating to regulate adequately
participants in that section of the industry in relation to that
matter or those matters.
(7) The Minister may, by legislative instrument, give the ACMA a
written direction as to the exercise of its powers under this clause.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 4 Industry codes and industry standards
Division 5 Industry standards
Clause 94
320 Broadcasting Services Act 1992
94 ACMA may determine industry standards—partial failure of
industry codes
(1) This clause applies if:
(a) an industry code that:
(i) applies to participants in a particular section of the
content industry; and
(ii) deals with 2 or more matters relating to the content
activities of those participants;
has been registered under this Part for at least 180 days; and
(b) clause 93 does not apply to the code; and
(c) the ACMA is satisfied that the code is deficient (as defined
by subclause (6)) to the extent to which the code deals with
one or more of those matters (the deficient matter or
deficient matters); and
(d) the ACMA has given the body or association that developed
the code a written notice requesting that deficiencies in the
code be addressed within a specified period; and
(e) that period ends and the ACMA is satisfied that it is
necessary or convenient for the ACMA to determine a
standard that applies to participants in that section of the
industry and deals with the deficient matter or deficient
matters.
(2) The period specified in a notice under paragraph (1)(d) must run
for at least 30 days.
(3) The ACMA may, by legislative instrument, determine a standard
that applies to participants in that section of the industry and deals
with the deficient matter or deficient matters. A standard under this
subclause is to be known as an industry standard.
(4) If the ACMA is satisfied that a body or association represents that
section of the industry, the ACMA must consult the body or
association before determining an industry standard under
subclause (3).
(5) On and after the day on which the industry standard comes into
force, the industry code has no effect to the extent to which it deals
with the deficient matter or deficient matters. However, this
subclause does not affect:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Industry codes and industry standards Part 4
Industry standards Division 5
Clause 95
Broadcasting Services Act 1992 321
(a) the continuing registration of the remainder of the industry
code; or
(b) any investigation, proceeding or remedy in respect of a
contravention of the industry code or clause 89 that occurred
before that day.
(6) For the purposes of this clause, an industry code that applies to
participants in a particular section of the content industry and deals
with 2 or more matters relating to the content activities of those
participants is deficient to the extent to which it deals with a
particular one of those matters if, and only if:
(a) the code is not operating to provide appropriate community
safeguards in relation to that matter; or
(b) the code is not otherwise operating to regulate adequately
participants in that section of the industry in relation to that
matter.
(7) The Minister may, by legislative instrument, give the ACMA a
written direction as to the exercise of its powers under this clause.
95 Compliance with industry standards
(1) If:
(a) an industry standard that applies to participants in a particular
section of the content industry is registered under this Part;
and
(b) a person is a participant in that section of the content
industry;
the person must comply with the industry standard.
Note: For enforcement, see Part 6 of this Schedule.
(2) Subclause (1) is a designated content/hosting service provider rule.
96 Formal warnings—breach of industry standards
(1) This clause applies to a person who is a participant in a particular
section of the content industry.
(2) The ACMA may issue a formal warning if the person contravenes
an industry standard registered under this Part.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 4 Industry codes and industry standards
Division 5 Industry standards
Clause 97
322 Broadcasting Services Act 1992
97 Variation of industry standards
The ACMA may, by legislative instrument, vary an industry
standard that applies to participants in a particular section of the
content industry if it is satisfied that it is necessary or convenient to
do so to:
(a) provide appropriate community safeguards in relation to one
or more matters relating to the content activities of those
participants; and
(b) otherwise regulate adequately those participants in relation to
one or more matters relating to the content activities of those
participants.
98 Revocation of industry standards
(1) The ACMA may, by legislative instrument, revoke an industry
standard.
(2) If:
(a) an industry code is registered under this Part; and
(b) the code is expressed to replace an industry standard;
the industry standard is revoked when the code is registered.
99 Public consultation on industry standards
(1) Before determining or varying an industry standard, the ACMA
must:
(a) make a copy of the draft available on its website; and
(b) publish a notice on its website:
(i) stating that the ACMA has prepared a draft of the
industry standard or variation; and
(ii) inviting interested persons to give written comments
about the draft to the ACMA within the period specified
in the notice.
(2) The period specified in the notice must run for at least 30 days
after the publication of the notice.
(3) Subclause (1) does not apply to a variation if the variation is of a
minor nature.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Industry codes and industry standards Part 4
Industry standards Division 5
Clause 100
Broadcasting Services Act 1992 323
(4) If interested persons have given comments in accordance with a
notice under subclause (1), the ACMA must have due regard to
those comments in determining or varying the industry standard, as
the case may be.
100 Consultation with designated body
(1) Before determining or varying an industry standard, the ACMA
must consult the designated body.
(2) Before revoking an industry standard under subclause 98(1), the
ACMA must consult the designated body.
Note: Designated body is defined by clause 79.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 4 Industry codes and industry standards
Division 6 Register of industry codes and industry standards
Clause 101
324 Broadcasting Services Act 1992
Division 6—Register of industry codes and industry
standards
101 ACMA to maintain Register of industry codes and industry
standards
(1) The ACMA is to maintain a Register in which the ACMA
includes:
(a) all industry codes required to be registered under this Part;
and
(b) all industry standards; and
(c) all requests made under clause 86; and
(d) all notices under clause 87; and
(e) all directions under clause 89.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Industry codes and industry standards Part 4
Miscellaneous Division 7
Clause 102
Broadcasting Services Act 1992 325
Division 7—Miscellaneous
102 Industry codes may provide for matters by reference to other
instruments
Section 589 of the Telecommunications Act 1997 applies to an
industry code in a corresponding way to the way in which it applies
to an instrument under that Act.
103 Industry standards may provide for matters by reference to
other instruments
Section 589 of the Telecommunications Act 1997 applies to an
industry standard in a corresponding way to the way in which it
applies to an instrument under that Act.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 5 Designated content/hosting service provider determinations
Clause 104
326 Broadcasting Services Act 1992
Part 5—Designated content/hosting service
provider determinations
104 Designated content/hosting service provider determinations
(1) The ACMA may, by legislative instrument, determine rules that
apply to designated content/hosting service providers in relation to
the provision of designated content/hosting services.
(2) A determination under subclause (1) is called a designated
content/hosting service provider determination.
(3) A designated content/hosting service provider determination has
effect only to the extent that:
(a) it is authorised by paragraph 51(v) of the Constitution (either
alone or when read together with paragraph 51(xxxix) of the
Constitution); or
(b) both:
(i) it is authorised by section 122 of the Constitution; and
(ii) it would have been authorised by paragraph 51(v) of the
Constitution (either alone or when read together with
paragraph 51(xxxix) of the Constitution) if section 51 of
the Constitution extended to the Territories.
(4) The ACMA must not make a designated content/hosting service
provider determination unless the determination relates to a matter
specified in the regulations.
(5) A designated content/hosting service provider determination may
make provision for or in relation to a particular matter by
empowering the ACMA to make decisions of an administrative
character.
105 Exemptions from designated content/hosting service provider
determinations
(1) The Minister may, by legislative instrument, determine that a
specified designated content/hosting service provider is exempt
from designated content/hosting service provider determinations.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Designated content/hosting service provider determinations Part 5
Clause 105
Broadcasting Services Act 1992 327
(2) The Minister may, by legislative instrument, determine that a
specified designated content/hosting service provider is exempt
from a specified designated content/hosting service provider
determination.
(3) A determination under this clause may be unconditional or subject
to such conditions (if any) as are specified in the determination.
(4) A determination under this clause has effect accordingly.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 6 Enforcement
Clause 106
328 Broadcasting Services Act 1992
Part 6—Enforcement
106 Compliance with designated content/hosting service provider
rules—offence
(1) A person commits an offence if:
(a) the person is a designated content/hosting service provider;
and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a designated
content/hosting service provider rule that applies to the
person.
Penalty: 100 penalty units.
(2) A person who contravenes subclause (1) commits a separate
offence in respect of each day (including a day of a conviction for
the offence or any later day) during which the contravention
continues.
107 Compliance with designated content/hosting service provider
rules—civil penalty provision
(1) A person must not contravene a designated content/hosting service
provider rule if:
(a) the person is a designated content/hosting service provider;
and
(b) the rule applies to the person.
(2) Subclause (1) is a civil penalty provision.
(3) A person who contravenes subclause (1) commits a separate
contravention of that subclause in respect of each day (including a
day of the making of a relevant civil penalty order or any
subsequent day) during which the contravention continues.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Enforcement Part 6
Clause 108
Broadcasting Services Act 1992 329
108 Remedial directions—breach of designated content/hosting
service provider rules
(1) This clause applies if the ACMA is satisfied that a designated
content/hosting service provider has contravened, or is
contravening, a designated content/hosting service provider rule
that applies to the provider.
(2) The ACMA may give the designated content/hosting service
provider a written direction requiring the provider to take specified
action directed towards ensuring that the provider does not
contravene the rule, or is unlikely to contravene the rule, in the
future.
(3) The following are examples of the kinds of direction that may be
given to a designated content/hosting service provider under
subclause (2):
(a) a direction that the provider implement effective
administrative systems for monitoring compliance with a
designated content/hosting service provider rule;
(b) a direction that the provider implement a system designed to
give the provider’s employees, agents and contractors a
reasonable knowledge and understanding of the requirements
of a designated content/hosting service provider rule, in so
far as those requirements affect the employees, agents or
contractors concerned.
Offence
(4) A person commits an offence if:
(a) the person is subject to a direction under subclause (2); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the direction.
Penalty: 100 penalty units.
(5) A person who contravenes subclause (4) commits a separate
offence in respect of each day (including a day of a conviction for
the offence or any later day) during which the contravention
continues.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 6 Enforcement
Clause 109
330 Broadcasting Services Act 1992
Civil penalty
(6) A person must comply with a direction under subclause (2).
(7) Subclause (6) is a civil penalty provision.
(8) A person who contravenes subclause (6) commits a separate
contravention of that subclause in respect of each day (including a
day of the making of a relevant civil penalty order or any
subsequent day) during which the contravention continues.
109 Formal warnings—breach of designated content/hosting service
provider rules
The ACMA may issue a formal warning to a person if the ACMA
is satisfied that the person has contravened, or is contravening, a
designated content/hosting service provider rule that applies to the
person.
110 Federal Court may order a person to cease providing designated
content/hosting services
(1) If the ACMA is satisfied that a person is providing a designated
content/hosting service otherwise than in accordance with a
designated content/hosting service provider rule that applies to the
person, the ACMA may apply to the Federal Court for an order
that the person cease providing that designated content/hosting
service.
(2) If the Federal Court is satisfied, on such an application, that the
person is providing a designated content/hosting service otherwise
than in accordance with a designated content/hosting service
provider rule that applies to the person, the Federal Court may
order the person to cease providing that designated content/hosting
service.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Protection from civil and criminal proceedings Part 7
Clause 111
Broadcasting Services Act 1992 331
Part 7—Protection from civil and criminal
proceedings
111 Protection from civil proceedings—service providers
Hosting service provider
(1) Civil proceedings do not lie against a hosting service provider in
respect of anything done by the provider in compliance with
clause 53.
Live content service provider
(2) Civil proceedings do not lie against a live content service provider
in respect of anything done by the provider in compliance with
clause 60.
Links service provider
(3) Civil proceedings do not lie against a links service provider in
respect of anything done by the provider in compliance with
clause 68.
112 Protection from criminal proceedings—ACMA, Classification
Board and Classification Review Board
(1) For the purposes of this clause, each of the following is a protected
person:
(a) the ACMA;
(b) a member or associate member of the ACMA;
(c) a member of the staff of the ACMA;
(d) a consultant engaged to assist in the performance of the
ACMA’s broadcasting, content and datacasting functions (as
defined in the Australian Communications and Media
Authority Act 2005);
(e) an officer whose services are made available to the ACMA
under paragraph 55(1)(a) of the Australian Communications
and Media Authority Act 2005;
(f) a member or temporary member of the Classification Board;
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 7 Protection from civil and criminal proceedings
Clause 112
332 Broadcasting Services Act 1992
(g) a member of staff assisting the Classification Board or
Classification Review Board as mentioned in section 88A of
the Classification (Publications, Films and Computer
Games) Act 1995;
(h) a consultant engaged to assist in the performance of the
functions of the Classification Board or the functions of the
Classification Review Board;
(i) an officer whose services are made available to the
Classification Board under subsection 54(3) of the
Classification (Publications, Films and Computer Games)
Act 1995;
(j) a member of the Classification Review Board.
(2) Criminal proceedings do not lie against a protected person for or in
relation to:
(a) the collection of content or material; or
(b) the possession of content or material; or
(c) the distribution of content or material; or
(d) the delivery of content or material; or
(e) the copying of content or material; or
(f) the doing of any other thing in relation to content or material;
in connection with the exercise of a power, or the performance of a
function, conferred on the ACMA, the Classification Board or the
Classification Review Board by this Schedule or Schedule 5 to this
Act.
Definition
(3) In this clause:
possession includes have in custody or control.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Review of decisions Part 8
Clause 113
Broadcasting Services Act 1992 333
Part 8—Review of decisions
113 Review by the Administrative Appeals Tribunal
Decisions under Division 3 of Part 3
(1) An application may be made to the Administrative Appeals
Tribunal for a review of any of the following decisions made by
the ACMA:
(a) a decision to give a hosting service provider an interim
take-down notice;
(b) a decision to give a hosting service provider a final
take-down notice;
(c) a decision to give a hosting service provider a special
take-down notice;
(d) a decision under subclause 47(2) or (3) to apply to the
Classification Board for classification of content hosted by a
hosting service provider.
(2) An application under subclause (1) may only be made by the
hosting service provider concerned.
Decisions under Division 4 of Part 3
(3) An application may be made to the Administrative Appeals
Tribunal for a review of any of the following decisions made by
the ACMA:
(a) a decision to give a live content service provider an interim
service-cessation notice;
(b) a decision to give a live content service provider a final
service-cessation notice;
(ba) a decision to give a live content service provider a special
service-cessation notice;
(c) a decision under subclause 56(2) or (3) to apply to the
Classification Board for classification of content provided by
a live content service.
(4) An application under subclause (3) may only be made by the live
content service provider concerned.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 8 Review of decisions
Clause 113
334 Broadcasting Services Act 1992
Decisions under Division 5 of Part 3
(5) An application may be made to the Administrative Appeals
Tribunal for a review of any of the following decisions made by
the ACMA:
(a) a decision to give a links service provider an interim
link-deletion notice;
(b) a decision to give a links service provider a final
link-deletion notice;
(c) a decision to give a links service provider a special
link-deletion notice;
(d) a decision under subclause 62(2) or (3) to apply to the
Classification Board for classification of content that can be
accessed using a link provided by a links service.
(6) An application under subclause (5) may only be made by the links
service provider concerned.
Decisions under clause 85
(7) An application may be made to the Administrative Appeals
Tribunal for a review of a decision of the ACMA under clause 85
to refuse to register a code.
(8) An application under subclause (7) may only be made by the body
or association that developed the code.
Decisions under clause 89
(9) An application may be made to the Administrative Appeals
Tribunal for a review of a decision of the ACMA under clause 89
to:
(a) give a direction to a designated content/hosting service
provider; or
(b) vary a direction that is applicable to a designated
content/hosting service provider; or
(c) refuse to revoke a direction that is applicable to a designated
content/hosting service provider.
(10) An application under subclause (9) may only be made by the
designated content/hosting service provider concerned.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Review of decisions Part 8
Clause 113
Broadcasting Services Act 1992 335
Decisions under subclause 104(5) or clause 108
(11) An application may be made to the Administrative Appeals
Tribunal for a review of any of the following decisions made by
the ACMA:
(a) a decision of a kind referred to in subclause 104(5) (which
deals with decisions under designated content/hosting service
provider determinations), where the decision relates to a
designated content/hosting service provider;
(b) a decision under clause 108 to:
(i) give a direction to a designated content/hosting service
provider; or
(ii) vary a direction that is applicable to a designated
content/hosting service provider; or
(iii) refuse to revoke a direction that is applicable to a
designated content/hosting service provider.
(12) An application under subclause (11) may only be made by the
designated content/hosting service provider concerned.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 9 Miscellaneous
Clause 114
336 Broadcasting Services Act 1992
Part 9—Miscellaneous
114 Additional ACMA functions
The ACMA has the following functions:
(a) to monitor compliance with codes and standards registered
under Part 4 of this Schedule;
(b) to advise and assist parents and responsible adults in relation
to the supervision and control of children’s access to content
services;
(c) to conduct and/or co-ordinate community education
programs about content services, in consultation with
relevant industry and consumer groups and government
agencies;
(d) to conduct and/or commission research into issues relating to
content services;
(e) to liaise with regulatory and other relevant bodies overseas
about co-operative arrangements for the regulation of the
commercial content services industry, including (but not
limited to) collaborative arrangements to develop:
(i) multilateral codes of practice; and
(ii) content labelling technologies;
(f) to inform itself and advise the Minister on technological
developments and service trends in the commercial content
services industry.
115 Recordings of content etc.
Recordings of live content
(1) The ACMA may:
(a) make a recording of live content, or of a segment of live
content, for the purposes of:
(i) an investigation under Division 2 of Part 3; or
(ii) an application to the Classification Board under
clause 22; and
(b) make one or more copies of such a recording for the purposes
of:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Miscellaneous Part 9
Clause 116
Broadcasting Services Act 1992 337
(i) an investigation under Division 2 of Part 3; or
(ii) an application to the Classification Board under
clause 22.
Copies of stored content
(2) The ACMA may make one or more copies of stored content for the
purposes of:
(a) an investigation under Division 2 of Part 3; or
(b) an application to the Classification Board under clause 22.
Copyright
(3) The ACMA does not infringe copyright if it does anything
authorised by subclause (1) or (2).
116 Samples of content to be submitted for classification
The ACMA must, from time to time:
(a) select samples of content that have been the subject of
complaints under clause 37; and
(b) apply to the Classification Board under clause 22 for
classification of that content.
117 Service of summons, process or notice on corporations
incorporated outside Australia
(1) This clause applies to:
(a) a summons or process in any proceedings under, or
connected with, this Schedule; or
(b) a notice under this Schedule;
where:
(c) the summons, process or notice, as the case may be, is
required to be served on, or given to, a body corporate
incorporated outside Australia; and
(d) the body corporate does not have a registered office or a
principal office in Australia; and
(e) the body corporate has an agent in Australia.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Schedule 7 Content services
Part 9 Miscellaneous
Clause 117A
338 Broadcasting Services Act 1992
(2) The summons, process or notice, as the case may be, is taken to
have been served on, or given to, the body corporate if it is served
on, or given to, the agent.
(3) Subclause (2) has effect in addition to section 28A of the Acts
Interpretation Act 1901.
Note: Section 28A of the Acts Interpretation Act 1901 deals with the service
of documents.
117A Meaning of broadcasting service
Disregard the following provisions of this Schedule in determining
the meaning of the expression broadcasting service:
(a) clause 9A;
(b) subparagraph 20(1)(c)(vi).
118 Review
(1) Within 3 years after the commencement of this Schedule, the
Minister must cause to be conducted a review of the following
matters:
(a) the operation of this Schedule;
(b) whether this Schedule should be amended or repealed.
(2) The Minister must cause to be prepared a report of a review under
subclause (1).
(3) The Minister must cause copies of a report to be tabled in each
House of the Parliament within 15 sitting days of that House after
the completion of the report.
119 This Schedule does not limit Schedule 5
This Schedule does not limit the operation of Schedule 5.
120 This Schedule does not limit the Telecommunications Act 1997
This Schedule does not limit the operation of the
Telecommunications Act 1997.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Content services Schedule 7
Miscellaneous Part 9
Clause 121
Broadcasting Services Act 1992 339
121 Implied freedom of political communication
(1) This Schedule does not apply to the extent (if any) that it would
infringe any constitutional doctrine of implied freedom of political
communication.
(2) Subclause (1) does not limit the application of section 15A of the
Acts Interpretation Act 1901 to this Act.
122 Concurrent operation of State and Territory laws
It is the intention of the Parliament that this Schedule is not to
apply to the exclusion of a law of a State or Territory to the extent
to which that law is capable of operating concurrently with this
Schedule.
123 Schedule not to affect performance of State or Territory
functions
A power conferred by this Schedule must not be exercised in such
a way as to prevent the exercise of the powers, or the performance
of the functions, of government of a State, the Northern Territory,
the Australian Capital Territory or Norfolk Island.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 1—About the endnotes
340 Broadcasting Services Act 1992
Endnotes
Endnote 1—About the endnotes
The endnotes provide details of the history of this legislation and its provisions.
The following endnotes are included in each compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Endnote 5—Uncommenced amendments
Endnote 6—Modifications
Endnote 7—Misdescribed amendments
Endnote 8—Miscellaneous
If there is no information under a particular endnote, the word ―none‖ will
appear in square brackets after the endnote heading.
Abbreviation key—Endnote 2
The abbreviation key in this endnote sets out abbreviations that may be used in
the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that
has amended the compiled law. The information includes commencement
information for amending laws and details of application, saving or transitional
provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at
the provision level. It also includes information about any provisions that have
expired or otherwise ceased to have effect in accordance with a provision of the
compiled law.
Uncommenced amendments—Endnote 5
The effect of uncommenced amendments is not reflected in the text of the
compiled law, but the text of the amendments is included in endnote 5.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 1—About the endnotes
Broadcasting Services Act 1992 341
Modifications—Endnote 6
If the compiled law is affected by a modification that is in force, details of the
modification are included in endnote 6.
Misdescribed amendments—Endnote 7
An amendment is a misdescribed amendment if the effect of the amendment
cannot be incorporated into the text of the compilation. Any misdescribed
amendment is included in endnote 7.
Miscellaneous—Endnote 8
Endnote 8 includes any additional information that may be helpful for a reader
of the compilation.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 2—Abbreviation key
342 Broadcasting Services Act 1992
Endnote 2—Abbreviation key
ad = added or inserted pres = present
am = amended prev = previous
c = clause(s) (prev) = previously
Ch = Chapter(s) Pt = Part(s)
def = definition(s) r = regulation(s)/rule(s)
Dict = Dictionary Reg = Regulation/Regulations
disallowed = disallowed by Parliament reloc = relocated
Div = Division(s) renum = renumbered
exp = expired or ceased to have effect rep = repealed
hdg = heading(s) rs = repealed and substituted
LI = Legislative Instrument s = section(s)
LIA = Legislative Instruments Act 2003 Sch = Schedule(s)
mod = modified/modification Sdiv = Subdivision(s)
No = Number(s) SLI = Select Legislative Instrument
o = order(s) SR = Statutory Rules
Ord = Ordinance Sub-Ch = Sub-Chapter(s)
orig = original SubPt = Subpart(s)
par = paragraph(s)/subparagraph(s)
/sub-subparagraph(s)
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 3—Legislation history
Broadcasting Services Act 1992 343
Endnote 3—Legislation history
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Broadcasting Services Act
1992
110, 1992 14 July 1992 ss. 4, 5, 7–92 and 117–218:
5 Oct 1992 (see Gazette
1992, No. GN38)
Remainder: Royal Assent
Radiocommunications
(Transitional Provisions and
Consequential
Amendments) Act 1992
167, 1992 11 Dec 1992 1 July 1993 —
Broadcasting Services
(Subscription Television
Broadcasting) Amendment
Act 1992
171, 1992 11 Dec 1992 11 Dec 1992 —
Transport and
Communications
Legislation Amendment Act
(No. 3) 1992
216, 1992 24 Dec 1992 ss. 10–13, 15–18 and 20:
Royal Assent (a)
ss. 14 and 19: 24 June 1993
(a)
—
Tobacco Advertising
Prohibition Act 1992
218, 1992 24 Dec 1992 ss. 36 and 37: 1 July 1993
(b)
—
Broadcasting Services
Amendment Act 1993
1, 1993 14 May 1993 14 May 1993 —
Broadcasting Services
Amendment Act (No. 2)
1993
2, 1993 14 May 1993 14 May 1993 —
Communications and the
Arts Legislation
Amendment Act (No. 1)
1995
32, 1995 12 Apr 1995 s. 3 (items 6–51): Royal
Assent (c)
—
Competition Policy Reform
Act 1995
88, 1995 20 July 1995 s. 77: 6 Nov 1995 (see
Gazette 1995, No. S423) (d)
—
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 3—Legislation history
344 Broadcasting Services Act 1992
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Broadcasting Services
Amendment Act 1995
139, 1995 8 Dec 1995 ss. 1, 2, 8, 9, 12(1), 13 and
14: Royal Assent
Remainder: 5 Jan 1996
ss. 3(2) and
14–16
Telecommunications
(Transitional Provisions and
Consequential
Amendments) Act 1997
59, 1997 3 May 1997 Schedule 1 (items 7–12):
1 July 1997 (e)
Schedule 1 (items 13, 14):
(e)
—
Broadcasting Services
Amendment Act 1997
115, 1997 7 July 1997 7 July 1997 Sch. 1
(item 5)
Communications
Legislation Amendment Act
(No. 1) 1997
119, 1997 7 July 1997 4 Aug 1997 —
Broadcasting Services
Legislation Amendment Act
1997
143, 1997 8 Oct 1997 8 Oct 1997 Sch. 1
(items 8, 9)
Audit (Transitional and
Miscellaneous) Amendment
Act 1997
152, 1997 24 Oct 1997 Schedule 2 (items 597–604):
1 Jan 1998 (see Gazette
1997, No. GN49) (f)
—
Broadcasting Services
Amendment Act (No. 2)
1997
180, 1997 27 Nov 1997 25 Dec 1997 —
Financial Sector Reform
(Consequential
Amendments) Act 1998
48, 1998 29 June 1998 Schedule 1 (item 24):
1 July 1998 (see Gazette
1998, No. S316) (g)
—
Television Broadcasting
Services (Digital
Conversion) Act 1998
99, 1998 27 July 1998 27 July 1998 Sch. 1
(item 7)
Broadcasting Services
Amendment (Online
Services) Act 1999
90, 1999 16 July 1999 16 July 1999 —
Broadcasting Services
Amendment Act (No. 2)
1999
122, 1999 13 Oct 1999 13 Oct 1999 —
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 3—Legislation history
Broadcasting Services Act 1992 345
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Public Employment
(Consequential and
Transitional) Amendment
Act 1999
146, 1999 11 Nov 1999 Schedule 1 (items 282, 283):
5 Dec 1999 (see Gazette
1999, No. S584) (h)
—
Corporate Law Economic
Reform Program Act 1999
156, 1999 24 Nov 1999 Schedule 10 (item 68):
13 Mar 2000 (see Gazette
2000, No. S114) (i)
—
Broadcasting Services
Amendment Act (No. 1)
1999
197, 1999 23 Dec 1999 Schedule 2: 20 Jan 2000
Schedule 3 (items 14–19):
(j)
Remainder: Royal Assent
Sch. 3
(items 10, 11,
19)
Broadcasting Services
Amendment Act (No. 3)
1999
198, 1999 23 Dec 1999 Schedule 1 (items 6–19):
1 July 2000
Schedule 1 (items 20, 22):
1 July 2001
Schedule 1 (item 21): (k)
Remainder: Royal Assent
Sch. 1
(items 5, 19,
22)
Broadcasting Services
Amendment (Digital
Television and Datacasting)
Act 2000
108, 2000 3 Aug 2000 Schedule 1 (items 75, 137,
137A, 142, 143): Royal
Assent
Schedule 1 (items 134A–
134D, 136A, 136B, 136D–
136J, 139A, 139D, 139E):
3 Feb 2001
Remainder: 1 Jan 2001 (see
Gazette 2000, No. GN50)
Sch. 1
(items 141–
145)
Criminal Code Amendment
(Theft, Fraud, Bribery and
Related Offences) Act 2000
137, 2000 24 Nov 2000 ss. 1–3 and Schedule 1
(items 1, 4, 6, 7, 9–11, 32):
Royal Assent
Remainder: 24 May 2001
Sch. 2
(items 418,
419)
Broadcasting Services
Amendment Act 2000
172, 2000 21 Dec 2000 Schedule 2: (l)
Remainder: Royal Assent
Sch. 1
(item 36)
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 3—Legislation history
346 Broadcasting Services Act 1992
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Communications and the
Arts Legislation
Amendment (Application of
Criminal Code) Act 2001
5, 2001 20 Mar 2001 Schedule 1 (items 18–26,
28–38): (m)
Schedule 1 (item 27):
1 July 2001 (m)
s. 4
Classification (Publications,
Films and Computer
Games) Amendment Act
(No. 1) 2001
13, 2001 22 Mar 2001 22 Mar 2002 —
Broadcasting Legislation
Amendment Act 2001
23, 2001 6 Apr 2001 6 Apr 2001 —
Corporations (Repeals,
Consequentials and
Transitionals) Act 2001
55, 2001 28 June 2001 ss. 4–14 and Schedule 3
(items 88–93): 15 July 2001
(see Gazette 2001, No.
S285) (n)
ss. 4–14
Broadcasting Legislation
Amendment Act (No. 2)
2001
92, 2001 20 July 2001 20 July 2001 ss. 4 and 5
Financial Sector (Collection
of Data–Consequential and
Transitional Provisions) Act
2001
121, 2001 24 Sept 2001 ss. 1–3: Royal Assent
Remainder: 1 July 2002 (see
s. 2(2) and Gazette 2002,
No. GN24)
—
Broadcasting Legislation
Amendment Act (No. 2)
2002
120, 2002 2 Dec 2002 Schedules 1 and 2:
30 Dec 2002
Remainder: Royal Assent
Sch. 1
(item 16) and
Sch. 2
(items 11, 12)
Broadcasting Legislation
Amendment Act (No. 1)
2002
126, 2002 10 Dec 2002 10 Dec 2002 —
Broadcasting Legislation
Amendment Act (No. 1)
2003
4, 2003 26 Feb 2003 26 Feb 2003 —
Therapeutic Goods
Amendment Act (No. 1)
2003
39, 2003 27 May 2003 Schedule 2: 27 Nov 2003 Sch. 2
(item 3)
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 3—Legislation history
Broadcasting Services Act 1992 347
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Communications
Legislation Amendment Act
(No. 3) 2003
108, 2003 24 Oct 2003 Schedule 1 (items 1–7):
12 Dec 2003 (see Gazette
2003, No. GN49)
Schedule 1 (items 25–48):
21 Nov 2003
Remainder: Royal Assent
Sch. 1
(item 24)
Classification (Publications,
Films and Computer
Games) Amendment Act
2004
61, 2004 26 May 2004 Schedules 1 and 2:
26 May 2005
Remainder: Royal Assent
Sch. 2
(items 30–32)
US Free Trade Agreement
Implementation Act 2004
120, 2004 16 Aug 2004 Schedule 10: Royal Assent —
Crimes Legislation
Amendment
(Telecommunications
Offences and Other
Measures) Act (No. 2) 2004
127, 2004 31 Aug 2004 Schedule 1 (item 2):
1 Mar 2005
—
Financial Framework
Legislation Amendment Act
2005
8, 2005 22 Feb 2005 s. 4 and Schedule 1
(items 109, 496): Royal
Assent
s. 4 and Sch.
1 (item 496)
Broadcasting Services
Amendment
(Anti-Siphoning) Act 2005
43, 2005 1 Apr 2005 2 Apr 2005 Sch. 1
(item 2)
Australian Communications
and Media Authority
(Consequential and
Transitional Provisions) Act
2005
45, 2005 1 Apr 2005 Schedule 1 (items 6–58) and
Schedule 4: 1 July 2005 (o)
Schedule 2: (o)
Sch. 4
Broadcasting Services
Amendment (Subscription
Television Drama and
Community Broadcasting
Licences) Act 2006
71, 2006 23 June 2006 Schedule 1: 1 Jan 2006
Remainder: Royal Assent
Sch. 1
(item 62)
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 3—Legislation history
348 Broadcasting Services Act 1992
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Communications
Legislation Amendment
(Enforcement Powers) Act
2006
120, 2006 4 Nov 2006 Schedule 1: 4 Feb 2007
Remainder: Royal Assent
Sch. 1
(items 53, 54)
Broadcasting Legislation
Amendment Act (No. 1)
2006
127, 2006 4 Nov 2006 5 Nov 2006 —
Broadcasting Legislation
Amendment (Digital
Television) Act 2006
128, 2006 4 Nov 2006 Schedule 1 (items 1–20, 28,
28A): 5 Nov 2006
Schedule 2 (items 1A, 1–88,
88A, 93, 93A–93E):
1 Jan 2007
Schedule 2A (items 1–27):
4 May 2007
Schedule 3 (items 1–16):
1 Jan 2009
Sch. 1
(items 28,
28A) and
Sch. 2
(items 93,
93A–93E)
as amended by
Statute Law Revision Act
2008
73, 2008 3 July 2008 Schedule 2 (item 2): (p) —
Broadcasting Services
Amendment (Media
Ownership) Act 2006
129, 2006 4 Nov 2006 Schedule 1: 1 Feb 2007
Schedule 2: 4 Apr 2007 (see
F2007L00837)
Schedule 3: 1 Jan 2009
Remainder: Royal Assent
—
Broadcasting Services
Amendment (Collection of
Datacasting Transmitter
Licence Fees) Act 2006
153, 2006 8 Dec 2006 1 Jan 2007 —
Statute Law Revision Act
2007
8, 2007 15 Mar 2007 Schedule 1 (item 2): Royal
Assent
—
Classification (Publications,
Films and Computer
Games) Amendment Act
2007
27, 2007 15 Mar 2007 Schedule 1 (items 1–3, 16,
17): 1 July 2007 (see
F2007L01781)
Sch. 1
(items 16, 17)
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 3—Legislation history
Broadcasting Services Act 1992 349
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Broadcasting Legislation
Amendment Act 2007
28, 2007 15 Mar 2007 15 Mar 2007 —
Broadcasting Legislation
Amendment (Digital Radio)
Act 2007
68, 2007 28 May 2007 Schedule 1 (items 1–118,
183–185): 29 May 2007
Sch. 1
(items 183–
185)
Communications
Legislation Amendment
(Content Services) Act 2007
124, 2007 20 July 2007 Schedule 1 (items 8–77,
100–104): 20 Jan 2008
Schedule 1 (items 106, 107):
Royal Assent
Schedule 2 (item 1):
20 July 2008
Sch. 1
(items 100–
104, 106,
107)
Communications
Legislation Amendment
(Miscellaneous Measures)
Act 2008
72, 2008 3 July 2008 Schedule 1: 4 July 2008
Remainder: Royal Assent
Sch. 1
(item 5)
Statute Law Revision Act
2008
73, 2008 3 July 2008 Schedule 1 (items 15, 16):
Royal Assent
—
Broadcasting Legislation
Amendment (Digital Radio)
Act 2008
114, 2008 31 Oct 2008 1 Nov 2008 —
Same-Sex Relationships
(Equal Treatment in
Commonwealth Laws–
General Law Reform) Act
2008
144, 2008 9 Dec 2008 Schedule 3 (items 3–10):
10 Dec 2008
Sch. 3
(item 10)
Broadcasting Legislation
Amendment (Digital
Television Switch-over) Act
2008
158, 2008 18 Dec 2008 Schedule 1: 19 Dec 2008
Schedule 2: 16 Feb 2009
Remainder: Royal Assent
Sch. 2
(items 21, 22)
Statute Stocktake
(Regulatory and Other
Laws) Act 2009
111, 2009 16 Nov 2009 Schedule 1 (items 2–6):
17 Nov 2009
—
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 3—Legislation history
350 Broadcasting Services Act 1992
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Statute Law Revision Act
2010
8, 2010 1 Mar 2010 Schedule 1 (item 5) (Note)
and Schedule 5 (items 15–
26): Royal Assent
Schedule 5 (items 137, 138):
(q)
Sch. 5
(item 138)
Broadcasting Legislation
Amendment (Digital
Television) Act 2010
94, 2010 29 June 2010 Schedule 1 (items 1–134):
30 June 2010
Sch. 1
(item 134)
as amended by
Statute Law Revision Act
2011
5, 2011 22 Mar 2011 Schedule 2 (item 1): (r) —
Trade Practices Amendment
(Australian Consumer Law)
Act (No. 2) 2010
103, 2010 13 July 2010 Schedule 6 (items 1, 40–48):
1 Jan 2011
—
Statute Law Revision Act
2011
5, 2011 22 Mar 2011 Schedule 1 (item 10): Royal
Assent
—
Broadcasting Legislation
Amendment (Digital
Dividend and Other
Measures) Act 2011
36, 2011 26 May 2011 Schedule 1 (items 1–28),
Schedule 2 (items 2–60) and
Schedule 3: 27 May 2011
Sch. 3
Acts Interpretation
Amendment Act 2011
46, 2011 27 June 2011 Schedule 2 (items 293–313)
and Schedule 3 (items 10,
11): 27 Dec 2011
Sch. 3
(items 10, 11)
Broadcasting Services
Amendment (Review of
Future Uses of Broadcasting
Services Bands Spectrum)
Act 2011
177, 2011 5 Dec 2011 6 Dec 2011 —
Broadcasting Services
Amendment (Regional
Commercial Radio) Act
2012
34, 2012 15 Apr 2012 Schedule 1: 16 Apr 2012
Schedule 2: 15 Oct 2012
Remainder: Royal Assent
Sch. 1
(item 16) and
Sch. 2
(item 13)
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 3—Legislation history
Broadcasting Services Act 1992 351
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Broadcasting Services
Amendment (Improved
Access to Television
Services) Act 2012
83, 2012 28 June 2012 Schedule 1: 29 June 2012
Remainder: Royal Assent
Sch. 1
(items 14–16)
Broadcasting Services
Amendment (Digital
Television) Act 2012
88, 2012 28 June 2012 29 June 2012 Sch. 1
(items 8, 14)
Classification (Publications,
Films and Computer
Games) Amendment (R 18+
Computer Games) Act 2012
103, 2012 6 July 2012 Schedule 1 (item 5):
1 Jan 2013
—
Statute Law Revision Act
2012
136, 2012 22 Sept 2012 Schedule 1 (items 21–24):
Royal Assent
—
Australian Charities and
Not-for-profits Commission
(Consequential and
Transitional) Act 2012
169, 2012 3 Dec 2012 Schedule 2 (items 153, 154):
3 Dec 2012 (see s. 2(1))
Schedule 4 (item 12): [see
(s) and Endnote 5]
—
Federal Circuit Court of
Australia (Consequential
Amendments) Act 2013
13, 2013 14 Mar 2013 Schedule 1 (items 58, 59):
12 Apr 2013 (see s. 2(1))
—
Broadcasting Legislation
Amendment (Convergence
Review and Other
Measures) Act 2013
29, 2013 30 Mar 2013 Schedule 1 (items 1–14): 31
Mar 2013
Sch. 1
(items 12–14)
Broadcasting Legislation
Amendment (Digital
Dividend) Act 2013
51, 2013 28 May 2013 Schedule 1 (items 1–10):
1 Oct 2013
—
Sex Discrimination
Amendment (Sexual
Orientation, Gender Identity
and Intersex Status) Act
2013
98, 2013 28 June 2013 Schedule 1 (items 63A,
63B): 1 Aug 2013 (see
F2013L01435)
—
Statute Law Revision Act
2013
103, 2013 29 June 2013 Schedule 1 (items 24–28)
and Schedule 3 (items 34–
66, 343): Royal Assent
Sch. 3
(item 343)
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 3—Legislation history
352 Broadcasting Services Act 1992
(a) The Broadcasting Services Act 1992 was amended by sections 10–20 only of
the Transport and Communications Legislation Amendment Act (No. 3) 1992,
subsections 2(1) and (10) of which provide as follows:
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(10) If the commencement of sections 14 and 19 is not fixed by Proclamation
published in the Gazette within the period of 6 months beginning on the
day on which this Act receives the Royal Assent, those sections
commence on the first day after the end of that period.
(b) The Broadcasting Services Act 1992 was amended by sections 36 and 37 only
of the Tobacco Advertising Prohibition Act 1992, subsection 2(3) of which
provides as follows:
(3) Part 5 commences on 1 July 1993.
(c) The Broadcasting Services Act 1992 was amended by section 3 (items 6–51)
only of the Communications and the Arts Legislation Amendment Act (No. 1)
1995, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(d) The Broadcasting Services Act 1992 was amended by section 77 only of the
Competition Policy Reform Act 1995, subsection 2(2) of which provides as
follows:
(2) Part 3 commences on a day to be fixed by Proclamation. However, if
Part 3 does not commence by Proclamation within the period of 6
months beginning on the day on which this Act receives the Royal
Assent, then it commences on the first day after the end of that period.
(e) The Broadcasting Services Act 1992 was amended by Schedule 1 (items 7–
14) only of the Telecommunications (Transitional Provisions and
Consequential Amendments) Act 1997, subsections 2(2)(d) and (5) of which
provide as follows:
(2) The following provisions commence on 1 July 1997:
(d) Schedule 1;
(5) If the Broadcasting Services Amendment Act 1997 does not commence
before 1 July 1997, the amendments of section 171 of the Broadcasting
Services Act 1992 made by this Act commence immediately after the
commencement of the Broadcasting Services Amendment Act 1997.
The Broadcasting Services Amendment Act 1997 came into operation on
7 July 1997.
(f) The Broadcasting Services Act 1992 was amended by Schedule 2 (items 597–
604) only of the Audit (Transitional and Miscellaneous) Amendment Act
1997, subsection 2(2) of which provides as follows:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 3—Legislation history
Broadcasting Services Act 1992 353
(2) Schedules 1, 2 and 4 commence on the same day as the Financial
Management and Accountability Act 1997.
(g) The Broadcasting Services Act 1992 was amended by Schedule 1 (item 24)
only of the Financial Sector Reform (Consequential Amendments) Act 1998,
subsection 2(2) of which provides as follows:
(2) Subject to subsections (3) to (14), Schedules 1, 2 and 3 commence on the
commencement of the Australian Prudential Regulation Authority Act
1998.
(h) The Broadcasting Services Act 1992 was amended by Schedule 1 (items 282
and 283) only of the Public Employment (Consequential and Transitional)
Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:
(1) In this Act, commencing time means the time when the Public Service
Act 1999 commences.
(2) Subject to this section, this Act commences at the commencing time.
(i) The Broadcasting Services Act 1992 was amended by Schedule 10 (item 68)
only of the Corporate Law Economic Reform Program Act 1999,
subsection 2(2)(c) of which provides as follows:
(2) The following provisions commence on a day or days to be fixed by
Proclamation:
(c) the items in Schedules 10, 11 and 12.
(j) Subsection 2(3) of the Broadcasting Services Amendment Act (No. 1) 1999
provides as follows:
(3) Part 2 of Schedule 3 commences immediately after the commencement
of the Copyright Amendment (Digital Agenda) Act 2000.
The Copyright Amendment (Digital Agenda) Act 2000 came into operation on
4 March 2001.
(k) Subsection 2(3)(a) of the Communications and the Arts Legislation
Amendment (Application of Criminal Code) Act 2001 provides as follows:
(3) If section 1 of this Act commences before 1 July 2001:
(a) item 21 of Schedule 1 to the Broadcasting Services Amendment Act
(No. 3) 1999 does not commence (despite section 2 of that Act);
Section 1 commenced on 24 May 2001.
(l) Subsection 2(2) of the Broadcasting Services Amendment Act 2000 provides
as follows:
(2) Schedule 2 commences immediately after the commencement of
item 140 of Schedule 1 to the Broadcasting Services Amendment (Digital
Television and Datacasting) Act 2000.
Schedule 1 (item 140) commenced on 1 January 2001 (see Gazette 2000, No.
GN50).
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 3—Legislation history
354 Broadcasting Services Act 1992
(m) The Broadcasting Services Act 1992 was amended by Schedule 1 (items 18–
38) only of the Communications and the Arts Legislation Amendment
(Application of Criminal Code) Act 2001, subsections 2(1)(a) and (3)(b) of
which provide as follows:
(1) Subject to this section, this Act commences at the latest of the following
times:
(a) immediately after the commencement of item 15 of Schedule 1 to the
Criminal Code Amendment (Theft, Fraud, Bribery and Related
Offences) Act 2000;
(3) If section 1 of this Act commences before 1 July 2001:
(b) item 27 of Schedule 1 to this Act commences on 1 July 2001.
Item 15 commenced on 24 May 2001.
(n) The Broadcasting Services Act 1992 was amended by Schedule 3 (items 88–
93) only of the Corporations (Repeals, Consequentials and Transitionals) Act
2001, subsection 2(3) of which provides as follows:
(3) Subject to subsections (4) to (10), Schedule 3 commences, or is taken to
have commenced, at the same time as the Corporations Act 2001.
(o) Subsection 2(1) (items 2, 3 and 10) of the Australian Communications and
Media Authority (Consequential and Transitional Provisions) Act 2005
provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences,
or is taken to have commenced, in accordance with column 2 of the table.
Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
2. Schedule 1 At the same time as section 6 of the Australian
Communications and Media Authority Act 2005
commences.
1 July 2005
3. Schedule 2 Immediately after the commencement of the
provision(s) covered by table item 2.
1 July 2005
10. Schedule 4 At the same time as section 6 of the Australian
Communications and Media Authority Act 2005
commences.
1 July 2005
(p) Subsection 2(1) (item 45) of the Statute Law Revision Act 2008 provides as
follows:
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 3—Legislation history
Broadcasting Services Act 1992 355
(1) Each provision of this Act specified in column 1 of the table commences,
or is taken to have commenced, in accordance with column 2 of the table.
Any other statement in column 2 has effect according to its terms.
Provision(s) Commencement Date/Details
45. Schedule 2,
item 2
Immediately after the time specified in the
Broadcasting Legislation Amendment (Digital
Television) Act 2006 for the commencement of
item 26 of Schedule 2A to that Act.
4 May 2007
(q) Subsection 2(1) (items 31 and 38) of the Statute Law Revision Act 2010
provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences,
or is taken to have commenced, in accordance with column 2 of the table.
Any other statement in column 2 has effect according to its terms.
Provision(s) Commencement Date/Details
31. Schedule 5,
items 1 to 51
The day this Act receives the Royal Assent. 1 March 2010
38. Schedule 5,
Parts 2 and 3
Immediately after the provision(s) covered by table
item 31.
1 March 2010
(r) Subsection 2(1) (item 3) of the Statute Law Revision Act 2011 provides as
follows:
(1) Each provision of this Act specified in column 1 of the table commences,
or is taken to have commenced, in accordance with column 2 of the table.
Any other statement in column 2 has effect according to its terms.
Provision(s) Commencement Date/Details
3. Schedule 2,
item 1
Immediately after the time specified in the
Broadcasting Legislation Amendment (Digital
Television) Act 2010 for the commencement of
item 104A of Schedule 1 to that Act.
30 June 2010
(s) Subsection 2(1) (item 14) of the Australian Charities and Not-for-profits
Commission (Consequential and Transitional) Act 2012 provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences,
or is taken to have commenced, in accordance with column 2 of the table.
Any other statement in column 2 has effect according to its terms.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 3—Legislation history
356 Broadcasting Services Act 1992
Provision(s) Commencement Date/Details
14. Schedule 4,
Part 2, Division 2
The later of:
(a) immediately after the commencement of the provision(s) covered by table item 3; and
(b) immediately after the commencement of Schedule 1 to the Tax Laws Amendment (Special Conditions for Not-for-profit Concessions) Act 2012.
However, the provision(s) do not commence at all
unless both of the events mentioned in
paragraphs (a) and (b) occur.
[see Endnote 5]
(paragraph (b)
applies)
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 357
Endnote 4—Amendment history
Provision affected How affected
Title ...............................................am. No. 115, 1997; No. 90, 1999; No. 108, 2000; No. 124, 2007
Part 1
s. 3 .................................................am. No. 90, 1999; Nos. 108 and 172, 2000; No. 129, 2006; No. 124, 2007;
No. 8, 2010
s. 4 .................................................am. No. 90, 1999; Nos. 108 and 172, 2000; No. 45, 2005; No. 124, 2007;
No. 8, 2010
Heading to s. 5...............................am. No. 45, 2005
s. 5 .................................................am. No. 90, 1999; No. 108, 2000; No. 45, 2005; No. 124, 2007; No. 8,
2010
s. 6 .................................................am. Nos. 167 and 216, 1992; No. 1, 1993; No. 32, 1995; Nos. 59 and 119,
1997; No. 198, 1999; Nos. 108, 137 and 172, 2000; No. 120, 2002; No. 45,
2005; Nos. 120, 128 and 129, 2006; Nos. 68 and 124, 2007; Nos. 144 and
158, 2008; No. 94, 2010; Nos. 36 and 46, 2011; Nos. 34 and 169, 2012;
No. 13, 2013
Note to s. 7 ....................................ad. No. 108, 2000
s. 8A ..............................................ad. No. 108, 2000
ss. 8AA, 8AB ................................ad. No. 68, 2007
s. 8AC............................................ad. No. 68, 2007
am. No. 114, 2008; No. 8, 2010
s. 8AD ...........................................ad. No. 68, 2007
s. 8AE............................................ad. No. 94, 2010
s. 8AF............................................ad. No. 34, 2012
s. 8B ..............................................ad. No. 120, 2002
am. No. 45, 2005; No. 103, 2013
s. 10A ............................................ad. No. 5, 2001
Part 2
s. 11 ...............................................am. No. 172, 2000
s. 11A ............................................ad. No. 172, 2000
s. 12 ...............................................am. No. 172, 2000
s. 14 ...............................................am. No. 94, 2010
s. 17 ...............................................am. No. 216, 1992
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
358 Broadcasting Services Act 1992
Provision affected How affected
s. 18 ...............................................am. No. 216, 1992; No. 108, 2000; No. 128, 2006; No. 68, 2007
s. 18A ............................................ad. No. 172, 2000
am. No. 103, 2013
Heading to s. 19.............................am. No. 45, 2005
s. 19 ...............................................am. No. 172, 2000; No. 45, 2005
Heading to s. 21.............................am. No. 45, 2005
s. 21 ...............................................am. No. 172, 2000; No. 45, 2005
Heading to s. 22.............................am. No. 45, 2005
s. 22 ...............................................am. No. 45, 2005
Part 3
s. 23 ...............................................am. No. 45, 2005
Heading to s. 24.............................am. No. 45, 2005
s. 24 ...............................................am. No. 45, 2005
s. 25 ...............................................am. No. 167, 1992; No. 45, 2005; No. 68, 2007
Subhead. to s. 26(2) ......................ad. No. 36, 2011
s. 26 ...............................................am. No. 45, 2005; No. 128, 2006; No. 68, 2007; No. 36, 2011; No. 29,
2013
s. 26A ............................................ad. No. 128, 2006
am. No. 128, 2006; No. 36, 2011
s. 26AA .........................................ad. No. 36, 2011
s. 26B ............................................ad. No. 128, 2006
am. No. 128, 2006; No. 36, 2011
ss. 26C, 26D ..................................ad. No. 68, 2007
Subhead. to s. 27(2) ......................ad. No. 36, 2011
s. 27 ...............................................am. No. 45, 2005; No. 36, 2011
s. 28 ...............................................rs. No. 99, 1998
am. No. 108, 2000; No. 45, 2005
rep. No. 128, 2006
Heading to s. 28A..........................am. No. 108, 2000
rep. No. 128, 2006
s. 28A ............................................ad. No. 99, 1998
am. No. 108, 2000
rep. No. 128, 2006
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 359
Provision affected How affected
s. 29 ...............................................am. No. 119, 1997; No. 45, 2005; No. 94, 2010; No. 36, 2011
Heading to s. 30.............................am. No. 45, 2005
s. 30 ...............................................am. No. 45, 2005
s. 31 ...............................................am. No. 119, 1997; No. 45, 2005
s. 33 ...............................................am. No. 45, 2005
s. 34 ...............................................am. No. 119, 1997; No. 99, 1998; No. 108, 2000; No. 45, 2005; No 51,
2013
s. 35 ...............................................am. No. 45, 2005
s. 35A ............................................ad. No. 128, 2006
am. No. 158, 2008
rs. No. 177, 2011
rep. No. 29, 2013
Part 4
Division 1
Heading to Div. 1 of Part 4............ad. No. 94, 2010
s. 35B ............................................ad. No. 128, 2006
rep. No. 29, 2013
s. 35C ............................................ad. No. 68, 2007
s. 35D ............................................ad. No. 68, 2007
am. No. 8, 2010
Heading to s. 36.............................am. No. 45, 2005
s. 36 ...............................................am. No. 45, 2005; No. 128, 2006
s. 36A ............................................ad. No. 68, 2007
s. 37 ...............................................am. No. 45, 2005; No. 94, 2010
s. 37A ............................................ad. No. 29, 2013
Heading to s. 38.............................am. No. 45, 2005
s. 38 ...............................................am. No. 45, 2005
Subhead. to s. 38A(2) ...................am. No. 45, 2005
s. 38A ............................................ad. No. 139, 1995
am. No. 99, 1998; No. 108, 2000; No. 45, 2005; No. 128, 2006; No. 94,
2010
s. 38B ............................................ad. No. 108, 2000
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
360 Broadcasting Services Act 1992
Provision affected How affected
am. No. 92, 2001; No. 108, 2003; No. 45, 2005; Nos. 127 and 128, 2006;
No. 94, 2010
Subhead. to s. 38C(11) .................rs. No. 136, 2012
s. 38C ............................................ad. No. 94, 2010
am. No. 88, 2012
Subhead. to s. 39(4) ......................am. No. 45, 2005
s. 39 ...............................................rs. No. 139, 1995
am. No. 45, 2005
s. 40 ...............................................am. No. 45, 2005; No. 128, 2006; No. 5, 2011
s. 41 ...............................................am. No. 108, 2000; No. 45, 2005; No. 120, 2006
Division 2
Heading to Div. 2 of Part 4............ad. No. 94, 2010
s. 41A ............................................ad. No. 128, 2006
Subhead. to s. 41B(1) ...................am. No. 94, 2010
Subhead. to s. 41B(3) ...................am. No. 94, 2010
s. 41B ............................................ad. No. 128, 2006
am. No. 94, 2010; No. 36, 2011
Subhead. to s. 41C(3) ...................am. No. 94, 2010
s. 41C ............................................ad. No. 128, 2006
am. No. 94, 2010
s. 41CA..........................................ad. No. 94, 2010
am. No. 88, 2012
s. 41D ............................................ad. No. 68, 2007
Division 3
Heading to Div. 3 of Part 4............ad. No. 94, 2010
s. 42 ...............................................am. No. 94, 2010
Heading to s. 43.............................am. No. 45, 2005
s. 43 ...............................................am. No. 45, 2005
s. 43A ............................................ad. No. 129, 2006
s. 43AA .........................................ad. No. 94, 2010
am. No. 36, 2011
s. 43AB..........................................ad. No. 94, 2010
s. 43AC..........................................ad. No. 94, 2010
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 361
Provision affected How affected
am. No. 36, 2011
s. 43AD .........................................ad. No. 94, 2010
s. 43B ............................................ad. No. 129, 2006
am. No. 34, 2012
Note to s. 43B(1) ..........................ad. No. 34, 2012
rep. No. 34, 2012
s. 43C ............................................ad. No. 129, 2006
am. No. 34, 2012
s. 43D ............................................ad. No. 68, 2007
s. 44 ...............................................am. No. 45, 2005
Division 4
Heading to Div. 4 of Part 4............ad. No. 94, 2010
s. 45 ...............................................am. No. 94, 2010
s. 46 ...............................................am. No. 45, 2005
Heading to s. 47.............................am. No. 45, 2005
s. 47 ...............................................am. No. 45, 2005
s. 49 ...............................................am. No. 45, 2005
Part 5
Heading to Part 5 ...........................rs. No. 108, 2000
Division 1
Heading to s. 50A..........................am. No. 94, 2010
s. 50A ............................................ad. No. 129, 2006
am. No. 94, 2010
s. 51A ............................................ad. No. 128, 2006
s. 52 ...............................................am. No. 45, 2005
s. 52A ............................................ad. No. 129, 2006
Division 2
Subdivision A
Heading to Subdiv. A ....................
of Div. 2 of Part 5
ad. No. 108, 2000
Subdivision B
Subdiv. B of Div. 2 of Part 5 .........ad. No. 108, 2000
s. 54A ............................................ad. No. 108, 2000
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
362 Broadcasting Services Act 1992
Provision affected How affected
Subdivision C
Subdiv. C of Div. 2 of Part 5 .........ad. No. 68, 2007
s. 54B ............................................ad. No. 68, 2007
Division 3
Subdivision A
Heading to Subdiv. A ....................
of Div. 3 of Part 5
ad. No. 108, 2000
Subdivision B
Subdiv. B of Div. 3 of Part 5 .........ad. No. 108, 2000
s. 56A ............................................ad. No. 108, 2000
Div. 4 of Part 5 ..............................rep. No. 129, 2006
s. 57 ...............................................am. No. 139, 1995
rep. No. 129, 2006
s. 58 ...............................................am. No. 45, 2005
rep. No. 129, 2006
Division 5
Heading to Div. 5 of Part 5............rs. No. 129, 2006
s. 59 ...............................................am. No. 143, 1997; No. 45, 2005; No. 129, 2006; No. 8, 2010
ss. 60, 61........................................rep. No. 129, 2006
Division 5A
Div. 5A of Part 5 ...........................ad. No. 129, 2006
Subdivision A
s. 61AA .........................................ad. No. 129, 2006
am. No. 129, 2006; No. 94, 2010
s. 61AB..........................................ad. No. 129, 2006
s. 61AC..........................................ad. No. 129, 2006
am. No. 129, 2006
ss. 61AD, 61AE.............................ad. No. 129, 2006
s. 61AEA.......................................ad. No. 129, 2006
s. 61AF ..........................................ad. No. 129, 2006
Subdivision B
ss. 61AG, 61AH ............................ad. No. 129, 2006
ss. 61AJ–61AM.............................ad. No. 129, 2006
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 363
Provision affected How affected
Subdivision BA
ss. 61AMA–61AMF......................ad. No. 129, 2006
Subdivision C
s. 61AN .........................................ad. No. 129, 2006
s. 61ANA.......................................ad. No. 129, 2006
ss. 61AP–61AR .............................ad. No. 129, 2006
Subdivision D
s. 61AS ..........................................ad. No. 129, 2006
am. No. 8, 2010
s. 61AT..........................................ad. No. 129, 2006
Subdivision E
s. 61AU .........................................ad. No. 129, 2006
am. No. 8, 2010
ss. 61AV–61AZ.............................ad. No. 129, 2006
ss. 61AZA–61AZC........................ad. No. 129, 2006
s. 61AZCA ....................................ad. No. 129, 2006
ss. 61AZD–61AZH........................ad. No. 129, 2006
Division 5B
Div. 5B of Part 5............................ad. No. 129, 2006
ss. 61BA, 61BB.............................ad. No. 129, 2006
Subhead. to s. 61BC(6) .................am. No. 8, 2010
s. 61BC..........................................ad. No. 129, 2006
am. No. 8, 2010
ss. 61BD–61BH.............................ad. No. 129, 2006
Division 5C
Div. 5C of Part 5............................ad. No. 129, 2006
Subdivision A
s. 61CA..........................................ad. No. 129, 2006
s. 61CAA.......................................ad. No. 34, 2012
s. 61CB..........................................ad. No. 129, 2006
am. No. 34, 2012
s. 61CC..........................................ad. No. 129, 2006
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
364 Broadcasting Services Act 1992
Provision affected How affected
Subdivision B
s. 61CD..........................................ad. No. 129, 2006
am. No. 34, 2012
s. 61CE..........................................ad. No. 129, 2006
Subdivision C
ss. 61CF–61CH .............................ad. No. 129, 2006
s. 61CJ...........................................ad. No. 129, 2006
am. No. 8, 2010
ss. 61CK–61CN.............................ad. No. 129, 2006
s. 61CP ..........................................ad. No. 129, 2006
s. 61CPA .......................................ad. No. 129, 2006
s. 61CQ..........................................ad. No. 129, 2006
Subdivision D
ss. 61CR–61CT .............................ad. No. 129, 2006
Division 6
Heading to s. 62.............................am. No. 129, 2006
Subhead. to s. 62(1) ......................ad. No. 129, 2006
am. No. 68, 2007
s. 62 ...............................................am. No. 32, 1995; No. 108, 2000; No. 45, 2005; No. 129, 2006; No. 68,
2007
Subhead. to s. 63(1) ......................ad. No. 129, 2006
am. No. 68, 2007
s. 63 ...............................................am. No. 32, 1995; No. 108, 2000; No. 45, 2005; No. 129, 2006; No. 68,
2007
Heading to s. 64.............................am. No. 108, 2000; No. 45, 2005; No. 129, 2006
Subhead. to s. 64(1) ......................ad. No. 129, 2006
am. No. 68, 2007
s. 64 ...............................................am. No. 32, 1995; No. 108, 2000; No. 45, 2005; No. 129, 2006; No. 68,
2007
Heading to s. 65.............................am. No. 45, 2005
rs. No. 129, 2006
s. 65 ...............................................am. No. 32, 1995; No. 45, 2005
rs. No. 129, 2006
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 365
Provision affected How affected
ss. 65A, 65B ..................................ad. No. 120, 2006
Division 7
s. 66 ...............................................am. No. 32, 1995; No. 108, 2000; No. 5, 2001; No. 45, 2005; No. 129,
2006
s. 67 ...............................................am. No. 45, 2005; No. 129, 2006
s. 68 ...............................................am. No. 45, 2005
s. 69 ...............................................am. No. 32, 1995; No. 108, 2000
Division 8
Heading to Div. 8 of Part 5............am. No. 45, 2005
Heading to s. 70.............................am. No. 45, 2005
s. 70 ...............................................am. No. 45, 2005; No. 129, 2006
s. 71 ...............................................am. No. 45, 2005
s. 72 ...............................................am. No. 32, 1995; No. 108, 2000
Division 9
s. 73 ...............................................rs. No. 139, 1995; No. 99, 1998
am. No. 108, 2000
s. 73A ............................................ad. No. 108, 2000
rs. No. 92, 2001
Division 10
Heading to Div. 10 of Part 5..........am. No. 45, 2005
Heading to s. 74.............................am. No. 45, 2005
s. 74 ...............................................am. No. 108, 2000; No. 45, 2005
Division 11
s. 75 ...............................................am. No. 139, 1995; No. 99, 1998; No. 108, 2000; No. 45, 2005
Heading to s. 77.............................am. No. 103, 2010
s. 77 ...............................................am. No. 103, 2010
Part 6
s. 79A ............................................ad. No. 119, 1997
Heading to s. 80.............................am. No. 45, 2005
s. 80 ...............................................am. No. 45, 2005
s. 81 ...............................................am. No. 120, 2002; No. 45, 2005
s. 82 ...............................................am. No. 45, 2005; No. 68, 2007
s. 83 ..............................................am. No. 108, 2000; No. 120, 2002; No. 45, 2005; No. 120, 2006
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
366 Broadcasting Services Act 1992
Provision affected How affected
s. 84 ...............................................am. No. 45, 2005
s. 84A ............................................ad. No. 68, 2007
Heading to s. 85.............................am. No. 45, 2005
s. 85 ...............................................am. No. 45, 2005
s. 85A ............................................ad. No. 68, 2007
s. 86 ...............................................am. No. 120, 2002
Heading to s. 87.............................am. No. 45, 2005
s. 87 ...............................................am. No. 120, 2002; No. 45, 2005
s. 87A ............................................ad. No. 120, 2002
am. No. 45, 2005
s. 87B ............................................ad. No. 68, 2007
s. 88 ...............................................am. No. 45, 2005
s. 89 ...............................................am. No. 72, 2008
Subhead. to s. 90(2) ......................ad. No. 72, 2008
s. 90 ...............................................am. No. 120, 2002; No. 45, 2005; No. 72, 2008
Heading to s. 91.............................rs. No. 120, 2002
am. No. 45, 2005
s. 91 ...............................................am. No. 120, 2002; No. 45, 2005; No. 72, 2008
s. 91A ............................................ad. No. 71, 2006
s. 92 ...............................................am. No. 45, 2005
Part 6A
Part 6A ..........................................ad. No. 119, 1997
ss. 92A–92C ..................................ad. No. 119, 1997
am. No. 45, 2005
s. 92D ............................................ad. No. 119, 1997
am. No. 108, 2000; No. 45, 2005; No. 120, 2006
s. 92E.............................................ad. No. 119, 1997
am. No. 45, 2005
s. 92F.............................................ad. No. 119, 1997
am. No. 99, 1998; No. 45, 2005
s. 92G ............................................ad. No. 119, 1997
am. No. 45, 2005
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 367
Provision affected How affected
s. 92H ............................................ad. No. 119, 1997
Heading to s. 92J ...........................am. No. 45, 2005
s. 92J..............................................ad. No. 119, 1997
am. No. 45, 2005
s. 92K ............................................ad. No. 119, 1997
s. 92L.............................................ad. No. 119, 1997
am. No. 45, 2005
Part 7
Part 7 ............................................ad. No. 171, 1992
Division 1
s. 93 ...............................................ad. No. 171, 1992
am. No. 88, 1995
rep. No. 45, 2005
s. 94 ...............................................ad. No. 171, 1992
am. No. 1, 1993
rep. No. 111, 2009
s. 95 ...............................................ad. No. 171, 1992
am. No. 45, 2005; No. 94, 2010
s. 96 ...............................................ad. No. 171, 1992
am. No. 1, 1993; No. 88, 1995; No. 45, 2005; No. 103, 2010
s. 96A ............................................ad. No. 1, 1993
am. No. 88, 1995; No. 45, 2005
rep. No. 129, 2006
Heading to s. 97.............................am. No. 8, 2010
s. 97 ...............................................ad. No. 171, 1992
am. No. 88, 1995; No. 45, 2005; No. 103, 2010
s. 98 ...............................................ad. No. 171, 1992
am. No. 108, 2000; No. 45, 2005; No. 120, 2006
ss. 98A, 98B ..................................ad. No. 2, 1993
am. No. 88, 1995
rep. No. 45, 2005
s. 98C ............................................ad. No. 2, 1993
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
368 Broadcasting Services Act 1992
Provision affected How affected
rep. No. 45, 2005
s. 98D ............................................ad. No. 2, 1993
am. No. 94, 2010
Division 2
s. 99 ...............................................ad. No. 171, 1992
am. No. 45, 2005
s. 100 .............................................ad. No. 171, 1992
am. No. 1, 1993; No. 45, 2005; No. 27, 2007
s. 101 .............................................ad. No. 171, 1992
rep. No. 45, 2005
s. 102 .............................................ad. No. 171, 1992
rep. No. 198, 1999
s. 103 .............................................ad. No. 171, 1992
rep. No. 45, 2005
Division 2A
Div. 2A of Part 7 ...........................ad. No. 198, 1999
Subdivision A
s. 103A ..........................................ad. No. 198, 1999
am. No. 71, 2006
s. 103B ..........................................ad. No. 198, 1999
am. No. 198, 1999; No. 55, 2001; No. 71, 2006
ss. 103C–103G ..............................ad. No. 198, 1999
Heading to s. 103H........................am. No. 71, 2006
s. 103H ..........................................ad. No. 198, 1999
am. No. 71, 2006
s. 103J............................................ad. No. 198, 1999
am. No. 71, 2006
s. 103JA.........................................ad. No. 71, 2006
s. 103K ..........................................ad. No. 198, 1999
Heading to s. 103L ........................am. No. 45, 2005
s. 103L...........................................ad. No. 198, 1999
am. No. 45, 2005; No. 71, 2006
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 369
Provision affected How affected
s. 103M..........................................ad. No. 198, 1999
am. No. 71, 2006
Subdivision B
s. 103N ..........................................ad. No. 198, 1999
am. No. 71, 2006
Note to s. 103N(3) ........................am. No. 71, 2006
s. 103NA .......................................ad. No. 71, 2006
ss. 103P, 103Q...............................ad. No. 198, 1999
am. No. 71, 2006
Subdivision C
s. 103R ..........................................ad. No. 198, 1999
am. No. 71, 2006
Note to s. 103R(4) ........................am. No. 71, 2006
s. 103RA........................................ad. No. 71, 2006
s. 103S...........................................ad. No. 198, 1999
am. No. 71, 2006
Subdivision D
s. 103T...........................................ad. No. 198, 1999
am. No. 71, 2006
Note to s. 103T ..............................rep. No. 198, 1999
s. 103TA........................................ad. No. 71, 2006
Subdivision E
s. 103U ..........................................ad. No. 198, 1999
am. No. 71, 2006
Note to s. 103U(3) ........................am. No. 71, 2006
s. 103UA .......................................ad. No. 71, 2006
ss. 103V, 103W .............................ad. No. 198, 1999
am. No. 71, 2006
Subdivision F
s. 103X ..........................................ad. No. 198, 1999
am. No. 71, 2006
Note to s. 103X(4) ........................am. No. 71, 2006
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
370 Broadcasting Services Act 1992
Provision affected How affected
s. 103XA .......................................ad. No. 71, 2006
s. 103Y ..........................................ad. No. 198, 1999
am. No. 71, 2006
Subdivision G
s. 103Z...........................................ad. No. 198, 1999
am. No. 71, 2006
Note to s. 103Z ..............................rep. No. 198, 1999
s. 103ZAA .....................................ad. No. 71, 2006
Subdivision H
ss. 103ZA, 103ZB .........................ad. No. 198, 1999
am. No. 45, 2005
Heading to s. 103ZC......................am. No. 45, 2005
s. 103ZC ........................................ad. No. 198, 1999
am. No. 45, 2005
s. 103ZD........................................ad. No. 198, 1999
Subdivision I
Heading to s. 103ZE ......................am. No. 45, 2005
s. 103ZE ........................................ad. No. 198, 1999
am. No. 45, 2005; No. 71, 2006
s. 103ZF.........................................ad. No. 198, 1999
am. No. 45, 2005
Subdivision J
s. 103ZG........................................ad. No. 198, 1999
am. No. 45, 2005
ss. 103ZH, 103ZJ...........................ad. No. 198, 1999
ss. 103ZK, 103ZL..........................ad. No. 198, 1999
rep. No. 198, 1999
Subdiv. K of Div. 2A of Part 7 ......rep. No. 198, 1999
ss. 103ZM, 103ZN.........................ad. No. 198, 1999
rep. No. 198, 1999
Div. 3 of Part 7 ..............................rep. No. 129, 2006
s. 104 .............................................ad. No. 171, 1992
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 371
Provision affected How affected
rep. No. 129, 2006
s. 105 .............................................ad. No. 171, 1992
am. No. 45, 2005
rep. No. 129, 2006
ss. 106–110....................................ad. No. 171, 1992
rep. No. 129, 2006
Div. 4 of Part 7 ..............................rep. No. 129, 2006
s. 111 .............................................ad. No. 171, 1992
am. No. 32, 1995
rep. No. 129, 2006
Div. 5 of Part 7 ..............................rep. No. 129, 2006
s. 112 .............................................ad. No. 171, 1992
am. No. 32, 1995; No. 45, 2005
rep. No. 129, 2006
Division 6
s. 113 .............................................ad. No. 171, 1992
am. No. 111, 2009
s. 114 .............................................ad. No. 171, 1992
am. No. 45, 2005
s. 115 .............................................ad. No. 171, 1992
am. No. 139, 1995; No. 92, 2001; No. 43, 2005
s. 115A ..........................................ad. No. 128, 2006
s. 116 .............................................ad. No. 171, 1992
am. No. 139, 1995; No. 111, 2009
s. 116A ..........................................ad. No. 171, 1992
Heading to s. 116B ........................am. No. 103, 2010
s. 116B ..........................................ad. No. 171, 1992
am. No. 103, 2010
s. 116C ..........................................ad. No. 171, 1992
rep. No. 111, 2009
Part 8
ss. 117, 118....................................am. No. 45, 2005
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
372 Broadcasting Services Act 1992
Provision affected How affected
s. 119 .............................................am. No. 45, 2005; No. 27, 2007
s. 120 .............................................am. No. 45, 2005
Part 8A
Part 8A ..........................................ad. No. 197, 1999
s. 121A ..........................................ad. No. 197, 1999
am. No. 45, 2005
s. 121B ..........................................ad. No. 197, 1999
am. No. 55, 2001
ss. 121C, 121D ..............................ad. No. 197, 1999
Heading to s. 121E ........................am. No. 45, 2005
s. 121E...........................................ad. No. 197, 1999
am. No. 45, 2005
Part 8B
Part 8B...........................................ad. No. 172, 2000
Division 1
s. 121F...........................................ad. No. 172, 2000
am. No. 45, 2005
s. 121FAA .....................................ad. No. 172, 2000
Division 2
s. 121FA ........................................ad. No. 172, 2000
am. No. 45, 2005
s. 121FB ........................................ad. No. 172, 2000
am. No. 45, 2005; No. 94, 2010
s. 121FC ........................................ad. No. 172, 2000
am. No. 45, 2005; No. 120, 2006
ss. 121FD, 121FE ..........................ad. No. 172, 2000
am. No. 45, 2005
Division 3
s. 121FF.........................................ad. No. 172, 2000
am. No. 45, 2005
Division 4
s. 121FG ........................................ad. No. 172, 2000
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 373
Provision affected How affected
am. No. 120, 2006
s. 121FH ........................................ad. No. 172, 2000
am. No. 5, 2001; No. 45, 2005
rs. No. 120, 2006
ss. 121FHA, 121FHB ....................ad. No. 120, 2006
s. 121FJ .........................................ad. No. 172, 2000
am. No. 5, 2001
ss. 121FJA–121FJD.......................ad. No. 120, 2006
ss. 121FK, 121FL ..........................ad. No. 172, 2000
am. No. 45, 2005
Division 4A
s. 121FLA......................................ad. No. 172, 2000
s. 121FLB......................................ad. No. 172, 2000
am. No. 45, 2005
s. 121FLC......................................ad. No. 172, 2000
am. No. 45, 2005; No. 94, 2010
ss. 121FLD, 121FLE .....................ad. No. 172, 2000
am. No. 45, 2005
s. 121FLF ......................................ad. No. 172, 2000
am. No. 5, 2001
ss. 121FLG, 121FLH .....................ad. No. 172, 2000
am. No. 45, 2005; No. 94, 2010
s. 121FLJ .......................................ad. No. 172, 2000
am. No. 45, 2005; No. 8, 2010
Division 5
Heading to Div. 5 of Part 8B .........am. No. 45, 2005
ss. 121FM, 121FN .........................ad. No. 172, 2000
am. No. 45, 2005
Division 6
ss. 121FP–121FR...........................ad. No. 172, 2000
am. No. 45, 2005
s. 121FS.........................................ad. No. 172, 2000
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
374 Broadcasting Services Act 1992
Provision affected How affected
am. No. 13, 2013
Part 9
Heading to Part 9 ...........................rs. No. 29, 2013
s. 121G ..........................................ad. No. 29, 2013
s. 122 .............................................am. No. 120, 2002; No. 120, 2004; No. 45, 2005; No. 128, 2006; No. 94,
2010; No. 29, 2013
Note to s. 122(1)............................ad. No. 29, 2013
s. 123 .............................................am. No. 216, 1992; No. 180, 1997; No. 120, 2002; No. 61, 2004; No. 45,
2005; No. 128, 2006; Nos. 27 and 68, 2007; No. 83, 2012; No 98, 2013
Heading to s. 123A........................am. No. 45, 2005
s. 123A ..........................................ad. No. 216, 1992
am. No. 180, 1997; No. 45, 2005
s. 123B ..........................................ad. No. 94, 2010
Heading to s. 124...........................am. No. 45, 2005
s. 124 .............................................am. No. 45, 2005
Heading to s. 125...........................am. No. 45, 2005
ss. 125–127....................................am. No. 45, 2005
s. 128 .............................................rs. No. 171, 1992
Heading to s. 129...........................am. No. 45, 2005
s. 129 .............................................am. No. 45, 2005
Heading to s. 130...........................am. No. 103, 2010
s. 130 .............................................am. No. 103, 2010
Part 9A
Part 9A ..........................................ad. No. 128, 2006
Heading to s. 130A........................am. No. 68, 2007
s. 130A ..........................................ad. No. 128, 2006
am. No. 68, 2007
ss. 130AA, 130AB.........................ad. No. 68, 2007
s. 130AC........................................ad. No. 94, 2010
Heading to s. 130B ........................am. No. 68, 2007
s. 130B ..........................................ad. No. 128, 2006
am. No. 103, 2010
s. 130BA........................................ad. No. 68, 2007
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 375
Provision affected How affected
am. No. 103, 2010
s. 130BB........................................ad. No. 94, 2010
am. No. 103, 2010
Part 9B
Part 9B...........................................ad. No. 128, 2006
Division 1
s. 130C ..........................................ad. No. 128, 2006
Division 2
ss. 130D, 130E...............................ad. No. 128, 2006
s. 130F...........................................ad. No. 128, 2006
am. No. 68, 2007; No. 103, 2010
ss. 130G, 130H..............................ad. No. 128, 2006
Division 3
ss. 130J, 130K ...............................ad. No. 128, 2006
s. 130L...........................................ad. No. 128, 2006
am. Nos. 68 and 124, 2007
Division 4
ss. 130M, 130N .............................ad. No. 128, 2006
ss. 130P, 130Q...............................ad. No. 128, 2006
Division 5
ss. 130R–130Z...............................ad. No. 128, 2006
Division 6
s. 130ZA........................................ad. No. 128, 2006
am. No. 8, 2010
Part 9C
Part 9C...........................................ad. No. 94, 2010
s. 130ZBA .....................................ad. No. 94, 2010
Heading to s. 130ZB......................am. No. 36, 2011
s. 130ZB ........................................ad. No. 94, 2010
am. No. 36, 2011; No. 88, 2012
s. 130ZBB .....................................ad. No. 36, 2011
am. No. 88, 2012
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
376 Broadcasting Services Act 1992
Provision affected How affected
s. 130ZBC .....................................ad. No. 88, 2012
s. 130ZC ........................................ad. No. 94, 2010
am. No. 36, 2011
Note to s. 130ZC(1) ......................rep. No. 36, 2011
ss. 130ZCAA, 130ZCAB...............ad. No. 94, 2010
am. No. 36, 2011
s. 130ZCA .....................................ad. No. 94, 2010
am. No. 36, 2011
ss. 130ZD, 130ZE..........................ad. No. 94, 2010
s. 130ZEA .....................................ad. No. 36, 2011
s. 130ZF.........................................ad. No. 94, 2010
am. No. 36, 2011
s. 130ZFA......................................ad. No. 94, 2010
s. 130ZG........................................ad. No. 94, 2010
am. No. 88, 2012
s. 130ZH........................................ad. No. 36, 2011
Part 9D
Part 9D ..........................................ad. No. 83, 2012
Division 1
s. 130ZJ .........................................ad. No. 83, 2012
s. 130ZK........................................ad. No. 83, 2012
s. 130ZL ........................................ad. No. 83, 2012
s. 130ZM .......................................ad. No. 83, 2012
s. 130ZN........................................ad. No. 83, 2012
s. 130ZO........................................ad. No. 83, 2012
s. 130ZP.........................................ad. No. 83, 2012
s. 130ZQ........................................ad. No. 83, 2012
Division 2
s. 130ZR ........................................ad. No. 83, 2012
s. 130ZS.........................................ad. No. 83, 2012
s. 130ZT ........................................ad. No. 83, 2012
s. 130ZU........................................ad. No. 83, 2012
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 377
Provision affected How affected
s. 130ZUA .....................................ad. No. 83, 2012
s. 130ZUAA ..................................ad. No. 83, 2012
s. 130ZUB .....................................ad. No. 83, 2012
Division 3
s. 130ZV........................................ad. No. 83, 2012
s. 130ZVA .....................................ad. No. 83, 2012
am. No. 103, 2013
s. 130ZW.......................................ad. No. 83, 2012
am. No. 103, 2013
s. 130ZX........................................ad. No. 83, 2012
s. 130ZY........................................ad. No. 83, 2012
s. 130ZYA .....................................ad. No. 83, 2012
s. 130ZZ ........................................ad. No. 83, 2012
s. 130ZZAA...................................ad. No. 83, 2012
s. 130ZZAB...................................ad. No. 83, 2012
Division 4
s. 130ZZA .....................................ad. No. 83, 2012
Division 5
s. 130ZZB......................................ad. No. 83, 2012
Division 6
s. 130ZZC......................................ad. No. 83, 2012
s. 130ZZD .....................................ad. No. 83, 2012
Division 7
s. 130ZZE......................................ad. No. 83, 2012
Part 10
Division 1
s. 131 .............................................am. No. 32, 1995
s. 132 .............................................am. No. 32, 1995; No. 120, 2006
ss. 133–135....................................am. No. 32, 1995
Division 1A
Div. 1A of Part 10 .........................ad. No. 120, 2006
ss. 136A–136F...............................ad. No. 120, 2006
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
378 Broadcasting Services Act 1992
Provision affected How affected
Division 2
Heading to Div. 2 ..........................
of Part 10
am. No. 45, 2005
s. 137 .............................................am. No. 45, 2005
rs. No. 120, 2006
s. 138 .............................................am. No. 32, 1995
rs. No. 120, 2006
s. 138A ..........................................ad. No. 120, 2006
Division 3
s. 139 .............................................am. No. 32, 1995; No. 119, 1997; No. 198, 1999
rs. No. 5, 2001
am. No. 5, 2001; No. 120, 2006
s. 140A ..........................................ad. No. 120, 2006
s. 141 .............................................am. No. 45, 2005
rs. No. 120, 2006
s. 142 .............................................am. No. 32, 1995
rs. No. 120, 2006
s. 142A ..........................................ad. No. 120, 2006
s. 143 .............................................am. No. 198, 1999; No. 55, 2001; No. 45, 2005
Division 4
s. 144 .............................................am. No. 45, 2005
Div. 5 of Part 10 ............................rep. No. 120, 2006
s. 145 .............................................rep. No. 120, 2006
s. 146 .............................................am. No. 45, 2005
rep. No. 120, 2006
Part 10A
Part 10A ........................................ad. No. 197, 1999
Division 1
s. 146A ..........................................ad. No. 197, 1999
s. 146B ..........................................ad. No. 197, 1999
am. No. 55, 2001; No. 128, 2006
s. 146C ..........................................ad. No. 197, 1999
Notes to s. 146C(1), (2) ................am. No. 46, 2011
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 379
Provision affected How affected
s. 146CA........................................ad. No. 197, 1999
Notes to s. 146CA(1), (2) .............am. No. 46, 2011
Subhead. to s. 146D(4) .................am. No. 45, 2005
s. 146D ..........................................ad. No. 197, 1999
am. No. 45, 2005
Division 2
ss. 146E–146H...............................ad. No. 197, 1999
ss. 146J, 146K ...............................ad. No. 197, 1999
s. 146KA .......................................ad. No. 197, 1999
Division 3
ss. 146L–146N...............................ad. No. 197, 1999
ss. 146P–146R...............................ad. No. 197, 1999
Division 4
s. 146S...........................................ad. No. 197, 1999
Part 11
Heading to Part 11.........................am. No. 45, 2005
Division 1
s. 147 .............................................am. No. 45, 2005; No. 120, 2006
s. 148 .............................................am. No. 45, 2005
Heading to s. 149...........................am. No. 45, 2005
s. 149 .............................................am. No. 45, 2005; No. 120, 2006
Division 2
Heading to Div. 2 of Part 11..........rs. No. 23, 2001
Heading to s. 150...........................am. No. 23, 2001
s. 150 .............................................am. No. 23, 2001; No. 45, 2005; No. 83, 2012
Heading to s. 151...........................am. No. 45, 2005
s. 151 .............................................am. No. 23, 2001; No. 45, 2005
Heading to s. 152...........................am. No. 45, 2005
s. 152 .............................................am. No. 45, 2005
Heading to s. 153...........................am. No. 45, 2005
s. 153 .............................................am. No. 45, 2005
Part 12 ...........................................rep. No. 45, 2005
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
380 Broadcasting Services Act 1992
Provision affected How affected
s. 154 .............................................rep. No. 45, 2005
Note to s. 154(2) ...........................ad. No. 152, 1997
rep. No. 45, 2005
s. 155 .............................................rep. No. 45, 2005
s. 156 .............................................am. No. 32, 1995
rep. No. 45, 2005
s. 157 .............................................am. No. 216, 1992; No. 32, 1995
rep. No. 45, 2005
s. 158 .............................................am. No. 167, 1992; Nos. 59 and 115, 1997; No. 108, 2000
rep. No. 45, 2005
s. 159 .............................................rep. No. 45, 2005
s. 160 .............................................am. No. 152, 1997; No. 198, 1999
rep. No. 45, 2005
s. 161 .............................................rep. No. 152, 1997
ss. 162–164....................................rep. No. 45, 2005
s. 165 .............................................am. No. 146, 1999
rep. No. 45, 2005
ss. 166, 167....................................rep. No. 45, 2005
Part 13
Heading to Part 13.........................am. No. 45, 2005
Division 1
Heading to s. 168...........................am. No. 45, 2005
s. 168 .............................................am. No. 45, 2005
Heading to s. 169...........................am. No. 45, 2005
s. 169 .............................................am. No. 45, 2005
Division 2
Heading to s. 170...........................am. No. 45, 2005
s. 170 .............................................am. No. 45, 2005
Heading to s. 171...........................am. No. 45, 2005
s. 171 .............................................rs. No. 115, 1997
am. No. 59, 1997; No. 45, 2005
Heading to s. 172...........................am. No. 45, 2005
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 381
Provision affected How affected
s. 172 .............................................am. No. 115, 1997; No. 45, 2005
ss. 173, 174....................................am. No. 45, 2005
ss. 176–180....................................am. No. 45, 2005
Division 3
s. 181 .............................................rep. No. 45, 2005
s. 182 .............................................am. No. 45, 2005
Heading to s. 183...........................am. No. 45, 2005
ss. 183, 184....................................am. No. 45, 2005
Heading to s. 185...........................am. No. 45, 2005
ss. 185–190....................................am. No. 45, 2005
Heading to s. 191...........................am. No. 45, 2005
ss. 191–196....................................am. No. 45, 2005
Heading to s. 197...........................am. No. 45, 2005
ss. 197–199....................................am. No. 45, 2005
Division 4
s. 200 .............................................am. No. 45, 2005
s. 202 .............................................am. No. 216, 1992; No. 108, 2000; No. 5, 2001; No. 120, 2006
Note to s. 202(2A) ........................am. No. 120, 2006
s. 203 .............................................am. No. 45, 2005
Part 14
Subhead. to s. 204(1) ....................ad. No. 94, 2010
s. 204 .............................................am. No. 216, 1992; No. 139, 1995; Nos. 119 and 143, 1997; No. 99, 1998;
Nos. 197 and 198, 1999; Nos. 108 and 172, 2000; Nos. 71, 128 and 129,
2006; No. 68, 2007; No. 94, 2010; No. 83, 2012
s. 205 .............................................am. No. 45, 2005
Part 14A
Part 14A ........................................ad. No. 143, 1997
s. 205A ..........................................ad. No. 143, 1997
am. No. 153, 2006
Heading to s. 205B ........................am. No. 153, 2006
s. 205B ..........................................ad. No. 143, 1997
am. No. 45, 2005; No. 128, 2006
Note to s. 205B..............................ad. No. 120, 2006
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
382 Broadcasting Services Act 1992
Provision affected How affected
s. 205BA........................................ad. No. 153, 2006
s. 205C ..........................................ad. No. 143, 1997
am. No. 45, 2005; No. 153, 2006
s. 205D ..........................................ad. No. 143, 1997
am. No. 45, 2005; Nos. 120 and 153, 2006
Part 14B
Part 14B.........................................ad. No. 120, 2006
Division 1
s. 205E...........................................ad. No. 120, 2006
Division 2
s. 205EA........................................ad. No. 120, 2006
ss. 205F–205H...............................ad. No. 120, 2006
ss. 205J–205N ...............................ad. No. 120, 2006
s. 205P...........................................ad. No. 120, 2006
s. 205PAA .....................................ad. No. 120, 2006
Part 14C
Part 14C.........................................ad. No. 120, 2006
s. 205PA ........................................ad. No. 120, 2006
am. No. 129, 2006; No. 36, 2011
s. 205Q ..........................................ad. No. 120, 2006
am. No. 129, 2006; No. 36, 2011
ss. 205R–205U ..............................ad. No. 120, 2006
Part 14D
Part 14D ........................................ad. No. 120, 2006
s. 205V ..........................................ad. No. 120, 2006
s. 205W .........................................ad. No. 120, 2006
am. No. 8, 2010
s. 205X ..........................................ad. No. 120, 2006
Part 14E
Part 14E.........................................ad. No. 120, 2006
s. 205XAA.....................................ad. No. 120, 2006
s. 205XA .......................................ad. No. 120, 2006
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 383
Provision affected How affected
ss. 205Y, 205Z...............................ad. No. 120, 2006
s. 205ZA........................................ad. No. 120, 2006
s. 205ZB ........................................ad. No. 120, 2006
s. 205ZC ........................................ad. No. 120, 2006
s. 205ZD........................................ad. No. 120, 2006
am. No. 136, 2012
s. 205ZE ........................................ad. No. 120, 2006
s. 205ZF.........................................ad. No. 120, 2006
Part 15
Heading to s. 206...........................am. No. 108, 2000
s. 206 .............................................am. No. 108, 2000
s. 207 .............................................am. No. 45, 2005
s. 208 .............................................am. No. 198, 1999
rep. No. 137, 2000
s. 209 .............................................am. No. 32, 1995
s. 210 .............................................am. No. 45, 2005
s. 211AA .......................................ad. No. 94, 2010
am. No. 88, 2012
s. 211A ..........................................ad. No. 94, 2010
s. 212 .............................................am. No. 197, 1999; No. 45, 2005; No. 128, 2006; Nos. 28 and 68, 2007
s. 212A ..........................................ad. No. 197, 1999
am. No. 55, 2001; No. 169, 2012
s. 212B ..........................................ad. No. 197, 1999
Note to s. 212B(6) ........................am. No. 46, 2011
s. 214 .............................................am. Nos. 108 and 172, 2000; No. 120, 2006
s. 215 .............................................rs. No. 1, 1993
am. No. 139, 1995
rep. No. 99, 1998
ad. No. 120, 2006
s. 215A ..........................................ad. No. 68, 2007
rep No 51, 2013
s. 215B ..........................................ad. No. 68, 2007
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
384 Broadcasting Services Act 1992
Provision affected How affected
s. 216A ..........................................ad. No. 99, 1998
s. 216B ..........................................ad. No. 90, 1999
s. 216C ..........................................ad. No. 108, 2000
s. 216D ..........................................ad. No. 108, 2000
rep. No. 45, 2005
ad. No. 124, 2007
s. 216E...........................................ad. No. 108, 2000
rep. No. 45, 2005
s. 217 .............................................am. No. 32, 1995
s. 218 .............................................am. No. 45, 2005
Schedule 1
Part 1
c. 1.................................................am. No. 139, 1995; Nos. 108 and 172, 2000; No. 45, 2005; No. 68, 2007
Part 2
c. 2.................................................am. No. 108, 2000; No. 129, 2006; No. 68, 2007
c. 4.................................................am. No. 48, 1998; Nos. 108 and 172, 2000; No. 121, 2001; No. 45, 2005;
No. 68, 2007
Part 3
cc. 6, 7 ...........................................am. No. 139, 1995
Part 4
c. 8.................................................am. No. 139, 1995; No. 45, 2005
Schedule 2
Part 1
c. 1.................................................am. No. 167, 1992; No. 13, 2001; No. 39, 2003; No. 45, 2005; No. 136,
2012
c. 2.................................................am. No. 218, 1992; No. 120, 2002; No. 68, 2007
Part 2
c. 3A..............................................ad. No. 216, 1992
cc. 4, 5 ...........................................am. No. 45, 2005
c. 6 ................................................am. No. 39, 2003
Part 3
Division 1
Heading to Div. 1 of Part 3............ad. No. 94, 2010
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 385
Provision affected How affected
c. 7.................................................am. Nos. 167, 216 and 218, 1992; No. 143, 1997; No. 99, 1998; No. 197,
1999; No. 108, 2000; No. 13, 2001; No. 61, 2004; No. 45, 2005; Nos. 128
and 129, 2006; No. 68, 2007; Nos. 73 and 158, 2008; No. 94, 2010; No. 36,
2011; No. 83, 2012; No. 29, 2013
Division 2
Div. 2 of Part 3 ..............................ad. No. 94, 2010
cc. 7A–7C......................................ad. No. 94, 2010
c. 7D..............................................ad. No. 94, 2010
am. No. 36, 2011
cc. 7E–7H......................................ad. No. 94, 2010
cc. 7J–7L .......................................ad. No. 94, 2010
Part 4
c. 8.................................................am. Nos. 167, 216 and 218, 1992; No. 143, 1997; No. 197, 1999; No. 45,
2005; No. 129, 2006; No. 68, 2007; No. 73, 2008
Part 5
c. 9.................................................am. Nos. 216 and 218, 1992; No. 197, 1999; No. 13, 2001; No. 120, 2002;
No. 61, 2004; No. 45, 2005; Nos. 71 and 128, 2006; No. 68, 2007; No. 36,
2011
Part 6
c. 10...............................................am. Nos. 216 and 218, 1992; No. 2, 1993; No. 139, 1995; No. 197, 1999;
No. 13, 2001; No. 61, 2004; No. 45, 2005; Nos. 128 and 129, 2006; No. 68,
2007; No. 94, 2010; No. 83, 2012
Part 7
c. 11...............................................am. Nos. 216 and 218, 1992; No. 180, 1997; No. 197, 1999; No. 13, 2001;
No. 61, 2004; No. 45, 2005; No. 128, 2006; No. 68, 2007; No. 83, 2012
Schedule 3 .....................................rep. No. 45, 2005
cc. 1–5 ...........................................rep. No. 45, 2005
c. 6.................................................rep. No. 152, 1997
cc. 7, 8 ...........................................rep. No. 45, 2005
c. 9.................................................am. No. 152, 1997; No. 156, 1999
rep. No. 45, 2005
cc. 10–12 .......................................rep. No. 45, 2005
cc. 13, 14 .......................................rep. No. 152, 1997
c. 15...............................................rep. No. 45, 2005
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
386 Broadcasting Services Act 1992
Provision affected How affected
c. 16...............................................am. No. 152, 1997
rep. No. 45, 2005
c. 17...............................................rep. No. 45, 2005
c. 18...............................................am. No. 119, 1997; Nos. 90 and 198, 1999; No. 108, 2000
rep. No. 45, 2005
Schedule 4
Schedule 4 .....................................ad. No. 99, 1998
Part 1
c. 1.................................................ad. No. 99, 1998
am. No. 108, 2000; No. 4, 2003; No. 45, 2005; No. 83, 2012
c. 2.................................................ad. No. 99, 1998
am. No. 108, 2000; No. 45, 2005; Nos. 127 and 128, 2006; No. 158, 2008;
No. 94, 2010
cc. 3, 4 ...........................................ad. No. 99, 1998
cc. 4A, 4B......................................ad. No. 108, 2000
c. 4C ..............................................ad. No. 128, 2006
am. No. 94, 2010
c. 4D..............................................ad. No. 128, 2006
c. 5.................................................ad. No. 99, 1998
am. No. 45, 2005; No. 94, 2010
c. 5A..............................................ad. No. 108, 2000
am. No. 23, 2001
rep. No. 128, 2006
ad. No. 128, 2006
am. No. 94, 2010
cc. 5B–5D......................................ad. No. 128, 2006
am. No. 94, 2010
c. 5E ..............................................ad. No. 128, 2006
c. 5F...............................................ad. No. 158, 2008
am. No. 88, 2012
c. 5H..............................................ad. No. 158, 2008
c. 5J ...............................................ad. No. 94, 2010
Part 2
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 387
Provision affected How affected
c. 6.................................................ad. No. 99, 1998
am. Nos. 108 and 172, 2000; No. 23, 2001; No. 108, 2003; No. 45, 2005;
Nos. 127 and 128, 2006; No. 158, 2008; No. 94, 2010; No. 36, 2011
Note to c. 6(7A) ............................ad. No. 158, 2008
Notes to c. 6(9), (10) .....................am. No. 46, 2011
Note to c. 6(21) .............................am. No. 46, 2011
c. 6A..............................................ad. No. 158, 2008
am. No. 88, 2012
c. 6B ..............................................ad. No. 158, 2008
c. 6C ..............................................ad. No. 94, 2010
rep. No. 36, 2011
Heading to c. 7...............................am. No. 45, 2005
c. 7.................................................ad. No. 99, 1998
am. No. 45, 2005
c. 7A..............................................ad. No. 108, 2000
am. No. 45, 2005; No. 94, 2010
c. 7AA ...........................................ad. No. 36, 2011
c. 7B ..............................................ad. No. 128, 2006
Subhead. to c. 8(7) ........................am. No. 108, 2000; No. 128, 2006
c. 8.................................................ad. No. 99, 1998
am. No. 108, 2000; No. 45, 2005; No. 128, 2006; No. 36, 2011
Heading to c. 9...............................am. No. 45, 2005
c. 9.................................................ad. No. 99, 1998
am. No. 45, 2005; No. 128, 2006; No. 94, 2010
c. 9A..............................................ad. No. 36, 2011
cc. 10–12 .......................................ad. No. 99, 1998
am. No. 45, 2005
Heading to c. 13.............................am. No. 45, 2005
c. 13...............................................ad. No. 99, 1998
am. No. 45, 2005
Heading to c. 14.............................am. No. 45, 2005
c. 14...............................................ad. No. 99, 1998
am. No. 45, 2005
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
388 Broadcasting Services Act 1992
Provision affected How affected
Heading to c. 15.............................am. No. 45, 2005
c. 15...............................................ad. No. 99, 1998
am. No. 45, 2005
cc. 16, 17 .......................................ad. No. 99, 1998
c. 18...............................................ad. No. 99, 1998
am. No. 45, 2005
Part 3
Subhead. to c. 19(7B) ...................am. No. 128, 2006
c. 19...............................................ad. No. 99, 1998
am. No. 108, 2000; No. 23, 2001; No. 45, 2005; No. 128, 2006; No. 158,
2008; No. 94, 2010; No. 36, 2011
Notes to c. 19(9), (10) ...................am. No. 46, 2011
Note to c. 19(21) ...........................am. No. 46, 2011
c. 20...............................................ad. No. 99, 1998
am. No. 108, 2000; No. 108, 2003; No. 45, 2005; No. 128, 2006; No. 36,
2011
c. 21...............................................ad. No. 99, 1998
c. 21A............................................ad. No. 36, 2011
Heading to c. 22.............................am. No. 45, 2005
c. 22...............................................ad. No. 99, 1998
am. No. 45, 2005
c. 22A............................................ad. No. 108, 2000
am. No. 45, 2005
c. 22AA .........................................ad. No. 36, 2011
Subhead. to c. 23(7) ......................am. No. 108, 2000; No. 128, 2006
c. 23...............................................ad. No. 99, 1998
am. No. 108, 2000; No. 45, 2005; No. 128, 2006; No. 36, 2011
cc. 24–26 .......................................ad. No. 99, 1998
am. No. 45, 2005
Heading to c. 27.............................am. No. 45, 2005
c. 27...............................................ad. No. 99, 1998
am. No. 45, 2005
Heading to c. 28.............................am. No. 45, 2005
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 389
Provision affected How affected
c. 28...............................................ad. No. 99, 1998
am. No. 45, 2005
Heading to c. 29.............................am. No. 45, 2005
c. 29...............................................ad. No. 99, 1998
am. No. 45, 2005
cc. 30–32 .......................................ad. No. 99, 1998
c. 33...............................................ad. No. 99, 1998
am. No. 45, 2005
c. 34...............................................ad. No. 99, 1998
c. 35...............................................ad. No. 99, 1998
rs. No. 108, 2000
am. No. 128, 2006; No. 158, 2008
c. 35A............................................ad. No. 94, 2010
am. No. 36, 2011
c. 35AA .........................................ad. No. 128, 2006
c. 35A............................................ad. No. 108, 2000
rep. No. 128, 2006
c. 36...............................................ad. No. 99, 1998
am. No. 108, 2000; No. 128, 2006
c. 36A............................................ad. No. 99, 1998
rep. No. 108, 2000
Part 3A ..........................................ad. No. 108, 2000
rep. No. 128, 2006
cc. 36B, 36C..................................ad. No. 108, 2000
rep. No. 128, 2006
Part 4
Heading to Part 4 ...........................rs. No. 128, 2006
Heading to Div. 1 of Part 4............ad. No. 108, 2000
rep. No. 128, 2006
Div. 1 of Part 4 ..............................rep. No. 128, 2006
c. 37...............................................ad. No. 99, 1998
rs. No. 108, 2000
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
390 Broadcasting Services Act 1992
Provision affected How affected
rep. No. 128, 2006
cc. 37A–37D..................................ad. No. 108, 2000
rep. No. 128, 2006
Division 2
Heading to Div. 2 of Part 4............rs. No. 128, 2006
Div. 2 of Part 4 ..............................ad. No. 108, 2000
c. 37DAA ......................................ad. No. 94, 2010
c. 37DA .........................................ad. No. 128, 2006
c. 37E ............................................ad. No. 108, 2000
am. No. 23, 2001; No. 126, 2002; Nos. 4 and 108, 2003; No. 128, 2006
Subhead. to c. 37EA(2) .................am. No. 45, 2005
rep. No. 128, 2006
c. 37EA..........................................ad. No. 92, 2001
am. No. 126, 2002; No. 4, 2003; No. 45, 2005
rep. No. 128, 2006
c. 37F.............................................ad. No. 108, 2000
am. No. 23, 2001; No. 126, 2002; No. 4, 2003; No. 128, 2006
Subhead. to c. 37FA(2) .................am. No. 45, 2005
rep. No. 128, 2006
c. 37FA..........................................ad. No. 92, 2001
am. No. 126, 2002; No. 4, 2003; No. 45, 2005
rep. No. 128, 2006
c. 37G............................................ad. No. 108, 2000
am. No. 92, 2001; No. 45, 2005; Nos. 127 and 128, 2006
c. 37H............................................ad. No. 108, 2000
am. No. 92, 2001; No. 45, 2005; No. 128, 2006
c. 37J .............................................ad. No. 108, 2000
rep. No. 128, 2006
c. 37K............................................ad. No. 108, 2000
c. 37L ............................................ad. No. 108, 2000
rs. No. 4, 2003
c. 37M ...........................................ad. No. 108, 2000
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 391
Provision affected How affected
Heading to Div. 3 of Part 4............ad. No. 108, 2000
rs. No. 128, 2006
rep. No. 83, 2012
Div. 3 of Part 4 ..............................rs. No. 128, 2006
rep. No. 83, 2012
c. 38...............................................ad. No. 99, 1998
am. No. 108, 2000
rs. No. 128, 2006
am. No. 128, 2006; No. 94, 2010; No. 36, 2011
rep. No. 83, 2012
Heading to Div. 4 of Part 4............ad. No. 108, 2000
rep. No. 128, 2006
Div. 4 of Part 4 ..............................rep. No. 128, 2006
c. 39...............................................ad. No. 99, 1998
am. No. 108, 2000; No. 45, 2005
rep. No. 128, 2006
c. 40...............................................ad. No. 99, 1998
rep. No. 108, 2000
Division 5
Heading to Div. 5 of Part 4............ad. No. 108, 2000
c. 41...............................................ad. No. 99, 1998
Part 4A
Part 4A ..........................................ad. No. 128, 2006
Division 1
Div. 1 of Part 4A ...........................ad. No. 128, 2006
c. 41A............................................ad. No. 99, 1998
rep. No. 108, 2000
ad. No. 128, 2006
am. No. 94, 2010
cc. 41B–41F ..................................ad. No. 128, 2006
am. No. 94, 2010
cc. 41FA, 41FB .............................ad. No. 94, 2010
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
392 Broadcasting Services Act 1992
Provision affected How affected
c. 41G............................................ad. No. 128, 2006
am. No. 94, 2010; No. 36, 2011; No. 136, 2012
Division 2
Heading to Div. 2 of ......................
Part 4A
ad. No. 128, 2006
c. 41H............................................ad. No. 128, 2006
am. No. 94, 2010
cc. 41J–41L ...................................ad. No. 128, 2006
am. No. 94, 2010
cc. 41LA, 41LB .............................ad. No. 94, 2010
c. 41M ...........................................ad. No. 128, 2006
c. 41N............................................ad. No. 94, 2010
Part 5
c. 42...............................................ad. No. 99, 1998
am. No. 108, 2000
c. 43...............................................ad. No. 99, 1998
am. No. 108, 2000; No. 129, 2006; No. 94, 2010
c. 43A............................................ad. No. 108, 2000
c. 44...............................................ad. No. 99, 1998
am. No. 108, 2000
c. 45...............................................ad. No. 99, 1998
am. No. 45, 2005; No. 128, 2006
c. 45A............................................ad. No. 108, 2000
am. No. 45, 2005; No. 128, 2006
c. 46...............................................ad. No. 99, 1998
am. No. 45, 2005; No. 128, 2006
cc. 47, 48 .......................................ad. No. 99, 1998
am. No. 108, 2000
cc. 49, 50 .......................................ad. No. 99, 1998
Part 6
Subhead. to c. 51(8) ......................rs. No. 8, 2005
c. 51...............................................ad. No. 99, 1998
am. Nos. 8 and 45, 2005
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 393
Provision affected How affected
c. 52...............................................ad. No. 99, 1998
c. 53...............................................ad. No. 99, 1998
am. No. 108, 2000
rep. No. 45, 2005
Part 7
c. 54...............................................ad. No. 99, 1998
am. No. 45, 2005
cc. 55–58 .......................................ad. No. 99, 1998
Part 8
c. 59...............................................ad. No. 99, 1998
rep. No. 45, 2005
c. 59A............................................ad. No. 108, 2000
rep. No. 45, 2005
Heading to c. 60.............................am. No. 108, 2000
rep. No. 128, 2006
c. 60...............................................ad. No. 99, 1998
am. No. 108, 2000; No. 108, 2003; No. 45, 2005
rep. No. 128, 2006
Heading to c. 60A..........................am. No. 4, 2003
rep. No. 128, 2006
c. 60A............................................ad. No. 108, 2000
am. No. 4, 2003
rep. No. 128, 2006
c. 60B ............................................ad. No. 108, 2000
rep. No. 83, 2012
c. 60C ............................................ad. No. 108, 2000
rep. No. 45, 2005
ad. No. 128, 2006
am. No. 158, 2008
rep. No. 83, 2012
c. 60D............................................ad. No. 94, 2010
am. No. 83, 2012
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
394 Broadcasting Services Act 1992
Provision affected How affected
rep. No. 29, 2013
Heading to Part 9 ...........................am. No. 45, 2005
rep. No. 8, 2007
c. 61...............................................ad. No. 99, 1998
am. No. 122, 1999; No. 108, 2000
rep. No. 45, 2005
Part 10
c. 62...............................................ad. No. 99, 1998
am. No. 108, 2000; No. 45, 2005
c. 63...............................................ad. No. 99, 1998
am. No. 45, 2005
Part 11
c. 64...............................................ad. No. 99, 1998
Schedule 5
Schedule 5 .....................................ad. No. 90, 1999
Part 1
Subhead. to c. 1(3) ........................am. No. 127, 2004
rep. No. 124, 2007
c. 1.................................................ad. No. 90, 1999
am. No. 127, 2004
rep. No. 124, 2007
c. 2.................................................ad. No. 90, 1999
am. No. 61, 2004; No. 45, 2005; No. 124, 2007; No. 8, 2010
c. 3.................................................ad. No. 90, 1999
am. No. 45, 2005; No. 129, 2006; No. 124, 2007; No. 8, 2010
c. 4.................................................ad. No. 90, 1999
am. No. 45, 2005
rep. No. 124, 2007
c. 5.................................................ad. No. 90, 1999
am. No. 8, 2010
Heading to c. 6...............................am. No. 61, 2004
rep. No. 124, 2007
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 395
Provision affected How affected
c. 6.................................................ad. No. 90, 1999
am. No. 61, 2004
rep. No. 124, 2007
c. 7.................................................ad. No. 90, 1999
Part 2
Subhead. to c. 8(2) ........................am. No. 8, 2010
c. 8.................................................ad. No. 90, 1999
am. No. 8, 2010; No. 103, 2013
Note to c. 8(2) ...............................am. No. 46, 2011
c. 9.................................................ad. No. 90, 1999
am. No. 8, 2010; No. 103, 2013
Note to c. 9(2) ...............................am. No. 8, 2010
Part 3 .............................................rep. No. 124, 2007
c. 10...............................................ad. No. 90, 1999
am. No. 61, 2004
rep. No. 124, 2007
cc. 11–13 .......................................ad. No. 90, 1999
rep. No. 124, 2007
cc. 14, 15 .......................................ad. No. 90, 1999
am. No. 45, 2005
rep. No. 124, 2007
c. 16...............................................ad. No. 90, 1999
am. No. 13, 2001; No. 61, 2004; No. 45, 2005
rep. No. 124, 2007
c. 17...............................................ad. No. 90, 1999
am. No. 45, 2005
rep. No. 124, 2007
cc. 18, 19 .......................................ad. No. 90, 1999
rep. No. 124, 2007
c. 20...............................................ad. No. 90, 1999
am. No. 45, 2005
rep. No. 124, 2007
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
396 Broadcasting Services Act 1992
Provision affected How affected
c. 21...............................................ad. No. 90, 1999
am. No. 13, 2001
rep. No. 124, 2007
Part 4
Heading to Part 4 ...........................am. No. 45, 2005
Division 1
Heading to Div. 1 of Part 4............am. No. 45, 2005
c. 22...............................................ad. No. 90, 1999
am. No. 45, 2005
rep. No. 124, 2007
c. 23...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 124, 2007; No. 8, 2010
c. 24...............................................ad. No. 90, 1999
am. No. 45, 2005
c. 25...............................................ad. No. 90, 1999
Division 2
Heading to Div. 2 of Part 4............am. No. 45, 2005
Heading to c. 26.............................am. No. 45, 2005
c. 26...............................................ad. No. 90, 1999
am. No. 45, 2005
Heading to c. 27.............................am. No. 45, 2005
rs. No. 124, 2007
c. 27...............................................ad. No. 90, 1999
am. No. 45, 2005
rs. No. 124, 2007
am. No. 8, 2010
cc. 28, 29 .......................................ad. No. 90, 1999
am. No. 45, 2005
Div. 3 of Part 4 ..............................rep. No. 124, 2007
c. 30...............................................ad. No. 90, 1999
am. No. 61, 2004; No. 45, 2005
rep. No. 124, 2007
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 397
Provision affected How affected
c. 31...............................................ad. No. 90, 1999
am. No. 45, 2005
rep. No. 124, 2007
Heading to c. 32.............................am. No. 61, 2004
rep. No. 124, 2007
c. 32...............................................ad. No. 90, 1999
am. No. 61, 2004; No. 45, 2005
rep. No. 124, 2007
cc. 33–36 .......................................ad. No. 90, 1999
am. No. 45, 2005
rep. No. 124, 2007
cc. 37–39 .......................................ad. No. 90, 1999
rep. No. 124, 2007
Division 4
c. 40...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 124, 2007; No. 8, 2010; No. 103, 2013
Note to c. 40(1) .............................am. No. 45, 2005
Note to c. 40(5) .............................am. No. 46, 2011
c. 41...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 124, 2007; No. 8, 2010
Heading to c. 42.............................am. No. 8, 2010
c. 42...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 124, 2007; No. 8, 2010
Heading to c. 43.............................am. No. 8, 2010
c. 43...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 8, 2010
Heading to c. 44.............................am. No. 8, 2010
c. 44...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 124, 2007; No. 8, 2010
Note to c. 44(2) .............................am. No. 45, 2005
Heading to c. 45.............................am. No. 8, 2010
c. 45...............................................ad. No. 90, 1999
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
398 Broadcasting Services Act 1992
Provision affected How affected
am. No. 45, 2005; No. 8, 2010
Note to c. 45(2) .............................am. No. 45, 2005
Heading to c. 46.............................am. No. 8, 2010
cc. 46, 47 .......................................ad. No. 90, 1999
am. No. 45, 2005; No. 8, 2010
Note to c. 47(1) .............................am. No. 45, 2005
c. 48...............................................ad. No. 90, 1999
am. No. 8, 2010
Heading to c. 49.............................am. No. 8, 2010
c. 49...............................................ad. No. 90, 1999
c. 50...............................................ad. No. 90, 1999
am. No. 8, 2010
Note to c. 50 ..................................am. No. 46, 2011
Heading to c. 51.............................am. No. 45, 2005
c. 51...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 8, 2010; No. 103, 2013
Note to c. 51(2) .............................am. No. 45, 2005; No. 8, 2010
Part 5
Division 1
c. 52...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 124, 2007; No. 8, 2010
Division 2
cc. 53, 54 .......................................ad. No. 90, 1999
c. 55...............................................ad. No. 90, 1999
am. No. 124, 2007; No. 8, 2010
Heading to c. 56.............................am. No. 8, 2010
c. 56...............................................ad. No. 90, 1999
rs. No. 124, 2007
am. No. 8, 2010
Heading to c. 57.............................am. No. 8, 2010
c. 57...............................................ad. No. 90, 1999
am. No. 8, 2010
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 399
Provision affected How affected
c. 58...............................................ad. No. 90, 1999
am. No. 103, 2013
Division 3
c. 59...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 124, 2007; No. 8, 2010
Subheads. to c. 60(1), (2) ..............rs. No. 124, 2007
c. 60...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 124, 2007; No. 8, 2010
Notes to c. 60(4), (5) .....................am. No. 46, 2011
c. 61...............................................ad. No. 90, 1999
Division 4
c. 62...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 124, 2007; No. 8, 2010
Heading to c. 63.............................am. No. 45, 2005
c. 63...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 8, 2010
Heading to c. 64.............................am. No. 8, 2010
c. 64...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 8, 2010
c. 65...............................................ad. No. 90, 1999
cc. 66, 67 .......................................ad. No. 90, 1999
am. No. 45, 2005; No. 8, 2010
Division 5
Heading to c. 68.............................am. No. 45, 2005
c. 68...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 8, 2010; No. 103, 2013
Heading to c. 69.............................am. No. 45, 2005
c. 69...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 8, 2010; No. 103, 2013
Heading to c. 70.............................am. No. 45, 2005
c. 70...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 8, 2010; No. 103, 2013
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
400 Broadcasting Services Act 1992
Provision affected How affected
Heading to c. 71.............................am. No. 45, 2005
c. 71...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 8, 2010; No. 103, 2013
c. 72...............................................ad. No. 90, 1999
am. No. 8, 2010
c. 73...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 8, 2010
c. 74...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 8, 2010; No. 103, 2013
c. 75...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 103, 2013
c. 76...............................................ad. No. 90, 1999
am. No. 45, 2005
c. 77...............................................ad. No. 90, 1999
am. No. 45, 2005
Division 6
Heading to c. 78.............................am. No. 45, 2005
c. 78...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 8, 2010
Part 6
c. 79...............................................ad. No. 90, 1999
am. No. 124, 2007
c. 80...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 124, 2007; No. 8, 2010; No. 103, 2013
c. 81...............................................ad. No. 90, 1999
am. No. 124, 2007; No. 8, 2010; No. 103, 2013
c. 82...............................................ad. No. 90, 1999
am. No. 5, 2001
c. 83...............................................ad. No. 90, 1999
am. No. 5, 2001; No. 45, 2005; No. 124, 2007; No. 8, 2010
c. 84...............................................ad. No. 90, 1999
am. No. 45, 2005
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 401
Provision affected How affected
Heading to c. 85.............................am. No. 8, 2010
c. 85...............................................ad. No. 90, 1999
am. No. 45, 2005
rs. No. 124, 2007
am. No. 8, 2010
Part 7
c. 86...............................................ad. No. 90, 1999
c. 87...............................................ad. No. 90, 1999
am. No. 5, 2001
Part 8
Heading to c. 88.............................am. No. 124, 2007; No. 8, 2010
Subhead. to c. 88(1) ......................rep. No. 124, 2007
c. 88...............................................ad. No. 90, 1999
am. No. 124, 2007; No. 8, 2010
Heading to c. 89.............................am. No. 45, 2005
rep. No. 124, 2007
c. 89...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 27, 2007
rep. No. 124, 2007
Part 9
c. 90...............................................ad. No. 90, 1999
Heading to c. 91.............................am. No. 8, 2010
c. 91...............................................ad. No. 90, 1999
am. No. 8, 2010; No. 103, 2013
Note to c. 91(2) .............................am. No. 46, 2011
Notes to c. 91(4), (5) .....................am. No. 46, 2011
Part 10
c. 92...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 124, 2007; No. 8, 2010
c. 93...............................................ad. No. 90, 1999
am. No. 45, 2005
Part 11
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
402 Broadcasting Services Act 1992
Provision affected How affected
Heading to c. 94.............................am. No. 45, 2005
c. 94...............................................ad. No. 90, 1999
am. No. 45, 2005; No. 8, 2010
c. 95...............................................ad. No. 90, 1999
am. No. 8, 2010
c. 96...............................................ad. No. 90, 1999
Schedule 6
Schedule 6 .....................................ad. No. 108, 2000
Part 1
c. 1.................................................ad. No. 108, 2000
am. No. 45, 2005; No. 68, 2007; No. 8, 2010; No 51, 2013
c. 2.................................................ad. No. 108, 2000
am. Nos. 55 and 92, 2001; Nos. 8 and 94, 2010; No 51, 2013
c 2A...............................................ad No 51, 2013
Subhead. to c. 3(3) ........................am. No. 45, 2005
c. 3.................................................ad. No. 108, 2000
am. No. 45, 2005
Note to c. 3(7) ...............................am. No. 46, 2011
Subhead. to c. 4(3) ........................am. No. 45, 2005
c. 4.................................................ad. No. 108, 2000
am. No. 45, 2005
Note to c. 4(7) ...............................am. No. 46, 2011
Heading to c. 5...............................rs. No. 92, 2001
c. 5.................................................ad. No. 108, 2000
am. No. 92, 2001
c. 6.................................................ad. No. 108, 2000
Part 2
c. 7.................................................ad. No. 108, 2000
am. No. 45, 2005; No. 68, 2007
c. 8.................................................ad. No. 108, 2000
am. No. 45, 2005
c. 9.................................................ad. No. 108, 2000
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 403
Provision affected How affected
am. No. 45, 2005; No. 120, 2006
c. 10...............................................ad. No. 108, 2000
am. No. 5, 2001; No. 45, 2005
c. 11...............................................ad. No. 108, 2000
am. No. 45, 2005
Heading to c. 12.............................am. No. 45, 2005; No. 68, 2007
c. 12...............................................ad. No. 108, 2000
am. No. 45, 2005; No. 68, 2007; No. 8, 2010
c. 12A............................................ad. No. 68, 2007
am. No. 8, 2010
Part 3
Division 1
Subhead. to c. 13(4) ......................am. No. 45, 2005
c. 13...............................................ad. No. 108, 2000
am. No. 45, 2005
Note to c. 13(8) .............................am. No. 46, 2011
c. 14...............................................ad. No. 108, 2000
Subhead. to c. 15(4) ......................am. No. 45, 2005
c. 15...............................................ad. No. 108, 2000
am. No. 92, 2001; No. 45, 2005
Note to c. 15(8) .............................am. No. 46, 2011
c. 16...............................................ad. No. 108, 2000
am. No. 92, 2001
cc. 17, 18 .......................................ad. No. 108, 2000
c. 18A............................................ad. No. 108, 2000
c. 19...............................................ad. No. 108, 2000
Heading to c. 20.............................am. No. 8, 2010
c. 20...............................................ad. No. 108, 2000
am. No. 8, 2010
Heading to c. 20AA.......................am. No. 8, 2010
c. 20AA .........................................ad. No. 108, 2000
am. No. 8, 2010
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
404 Broadcasting Services Act 1992
Provision affected How affected
Div. 1A of Part 3 ...........................rep. No. 128, 2006
cc. 20A, 20B..................................ad. No. 108, 2000
rep. No. 128, 2006
Division 2
Subhead. to c. 21(4) ......................am. No. 45, 2005
Subheads. to c. 21(9), (10) ............am. No. 8, 2010
c. 21...............................................ad. No. 108, 2000
am. No. 92, 2001; No. 45, 2005; No. 8, 2010
Note to c. 21(8) .............................am. No. 46, 2011
cc. 22, 23 .......................................ad. No. 108, 2000
c. 23A............................................ad. No. 108, 2000
Division 2A
Heading to c. 23B..........................am. No. 8, 2010
c. 23B ............................................ad. No. 108, 2000
am. No. 45, 2005; No. 8, 2010
Division 3
c. 24...............................................ad. No. 108, 2000
am. No. 61, 2004; No. 45, 2005; No. 128, 2006; No. 68, 2007; No. 8, 2010
c. 24A............................................ad. No. 68, 2007
c. 25...............................................ad. No. 108, 2000
am. No. 45, 2005
Heading to c. 26.............................am. No. 45, 2005
Subhead. to c. 26(6) ......................am. No. 45, 2005
c. 26...............................................ad. No. 108, 2000
am. No. 45, 2005; No. 8, 2010
c. 27...............................................ad. No. 108, 2000
am. No. 45, 2005
Note to c. 27(1) .............................am. No. 46, 2011
Division 4
Heading to Div. 4 of Part 3............am. No. 8, 2010
Heading to c. 27A..........................am. No. 8, 2010
c. 27A............................................ad. No. 108, 2000
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 405
Provision affected How affected
am. No. 23, 2001; No. 45, 2005; No. 8, 2010
Part 4
c. 28...............................................ad. No. 108, 2000
am. No. 61, 2004; No. 45, 2005; No 98, 2013
Heading to c. 29.............................am. No. 45, 2005
c. 29...............................................ad. No. 108, 2000
am. No. 45, 2005
Heading to c. 30.............................am. No. 45, 2005
c. 30...............................................ad. No. 108, 2000
am. No. 45, 2005; No. 8, 2010
Heading to c. 31.............................am. No. 45, 2005
cc. 31–33 .......................................ad. No. 108, 2000
am. No. 45, 2005
Heading to c. 34.............................am. No. 45, 2005
c. 34...............................................ad. No. 108, 2000
am. No. 45, 2005
Heading to c. 35.............................am. No. 8, 2010
c. 35...............................................ad. No. 108, 2000
am. No. 8, 2010
c. 35A............................................ad. No. 23, 2001
Part 5
Heading to Part 5 ...........................am. No. 45, 2005
c. 36...............................................ad. No. 108, 2000
am. No. 45, 2005; No 51, 2013
c. 37...............................................ad. No. 108, 2000
am. No. 23, 2001; No. 45, 2005; No. 8, 2010
Heading to c. 38.............................am. No. 45, 2005
c. 38...............................................ad. No. 108, 2000
am. No. 45, 2005
Part 6
Heading to Part 6 ...........................rs. No. 23, 2001
cc. 39, 40 .......................................ad. No. 108, 2000
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
406 Broadcasting Services Act 1992
Provision affected How affected
rep. No. 23, 2001
Heading to c. 41.............................rs. No. 23, 2001
c. 41...............................................ad. No. 108, 2000
am. No. 128, 2006
Part 7
cc. 42, 43 .......................................ad. No. 108, 2000
cc. 44, 45 .......................................ad. No. 108, 2000
am. No. 45, 2005
c. 46...............................................ad. No. 108, 2000
am. No. 128, 2006
c. 47...............................................ad. No. 108, 2000
am. No. 45, 2005
c. 48...............................................ad. No. 108, 2000
am. No. 45, 2005; No. 8, 2010
Part 8
Division 1
Heading to Div. 1 of Part 8............am No 51, 2013
Heading to c 49..............................am No 51, 2013
c. 49...............................................ad. No. 108, 2000
am. No. 120, 2006; No 51, 2013
Note to c. 49
Renumbered Note 1.......................No. 172, 2000
Note 2 to c. 49 ...............................ad. No. 172, 2000
c. 50...............................................ad. No. 108, 2000
am. No. 45, 2005
rs. No. 120, 2006
Note to c. 50
Renumbered Note 1.......................No. 172, 2000
Note 1 to c. 50 ...............................rep. No. 120, 2006
Note 2 to c. 50 ...............................ad. No. 172, 2000
rep. No. 120, 2006
c. 51...............................................ad. No. 108, 2000
am. No. 45, 2005
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 407
Provision affected How affected
c. 51A............................................ad. No. 172, 2000
Division 2
c. 52...............................................ad. No. 108, 2000
am. No. 128, 2006; No. 68, 2007
c. 52A............................................ad. No. 120, 2006
am. No. 68, 2007
c. 53...............................................ad. No. 108, 2000
am. No. 45, 2005; No. 120, 2006
c. 54...............................................ad. No. 108, 2000
am. No. 45, 2005; No. 128, 2006 (as am. by 73, 2008); No. 68, 2007
c. 55...............................................ad. No. 108, 2000
am. No. 45, 2005
cc. 56, 57 .......................................ad. No. 108, 2000
Part 9
c. 58...............................................ad. No. 108, 2000
am. No. 8, 2010
c. 59...............................................ad. No. 108, 2000
am. No. 45, 2005
Part 10 ...........................................rep. No. 128, 2006
c. 60...............................................ad. No. 108, 2000
rep. No. 128, 2006
c. 61...............................................ad. No. 108, 2000
rep. No. 45, 2005
Schedule 7
Schedule 7 .....................................ad. No. 124, 2007
Part 1
c. 1.................................................ad. No. 124, 2007
c. 2.................................................ad. No. 124, 2007
am. No. 124, 2007; No. 8, 2010
cc. 3–9 ...........................................ad. No. 124, 2007
c. 9A..............................................ad. No. 124, 2007
cc. 10–19 .......................................ad. No. 124, 2007
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
408 Broadcasting Services Act 1992
Provision affected How affected
Part 2
Division 1
cc. 20, 21 .......................................ad. No. 124, 2007
Division 2
cc. 22–26 .......................................ad. No. 124, 2007
c. 27...............................................ad. No. 124, 2007
am. No. 46, 2011
Division 3
cc. 28, 29 .......................................ad. No. 124, 2007
Division 4
Subdivision A
c. 30...............................................ad. No. 124, 2007
am. No. 103, 2012
c. 31...............................................ad. No. 124, 2007
am. No. 46, 2011
cc. 32, 33 .......................................ad. No. 124, 2007
Subdivision B
c. 34...............................................ad. No. 124, 2007
Subdivision C
c. 35...............................................ad. No. 124, 2007
Division 5
c. 36...............................................ad. No. 124, 2007
Part 3
Division 1
cc. 37–42 .......................................ad. No. 124, 2007
Division 2
cc. 43–46 .......................................ad. No. 124, 2007
Division 3
cc. 47–54 .......................................ad. No. 124, 2007
c. 55...............................................ad. No. 124, 2007
am. No. 8, 2010
Note to c. 55 ..................................am. No. 46, 2011
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
Broadcasting Services Act 1992 409
Provision affected How affected
Division 4
cc. 56–59 .......................................ad. No. 124, 2007
c. 59A............................................ad. No. 124, 2007
cc. 60, 61 .......................................ad. No. 124, 2007
Division 5
cc. 62–68 .......................................ad. No. 124, 2007
Division 6
cc. 69–72 .......................................ad. No. 124, 2007
Part 4
Division 1
c. 73...............................................ad. No. 124, 2007
Division 2
cc. 74–79 .......................................ad. No. 124, 2007
Division 3
cc. 80–84 .......................................ad. No. 124, 2007
Division 4
cc. 85, 86 .......................................ad. No. 124, 2007
c. 87...............................................ad. No. 124, 2007
am. No. 8, 2010
cc. 88–90 .......................................ad. No. 124, 2007
Division 5
cc. 91–98 .......................................ad. No. 124, 2007
c. 99...............................................ad. No. 124, 2007
am. No. 8, 2010
c. 100.............................................ad. No. 124, 2007
Division 6
c. 101.............................................ad. No. 124, 2007
am. No. 8, 2010
Division 7
cc. 102, 103 ...................................ad. No. 124, 2007
Part 5
cc. 104, 105 ...................................ad. No. 124, 2007
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 4—Amendment history
410 Broadcasting Services Act 1992
Provision affected How affected
Part 6
cc. 106–110 ...................................ad. No. 124, 2007
Part 7
cc. 111, 112 ...................................ad. No. 124, 2007
Part 8
c. 113.............................................ad. No. 124, 2007
Part 9
cc. 114–117 ...................................ad. No. 124, 2007
c. 117A..........................................ad. No. 124, 2007
cc. 118–123 ...................................ad. No. 124, 2007
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 5—Uncommenced amendments
Broadcasting Services Act 1992 411
Endnote 5—Uncommenced amendments
Australian Charities and Not-for-profits Commission (Consequential and
Transitional) Act 2012 (No. 169, 2012)
Schedule 4
12 Subparagraph 212A(1)(a)(ii)
After ―not-for-profit entity‖, insert ―(within the meaning of the Income
Tax Assessment Act 1997)‖.
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630
Endnotes
Endnote 6—Modifications [none]
412 Broadcasting Services Act 1992
Endnote 6—Modifications [none]
Endnote 7—Misdescribed amendments [none]
Endnote 8—Miscellaneous [none]
Rectified 30/10/2013 ComLaw Authoritative Act C2013C00630