عن الملكية الفكرية التدريب في مجال الملكية الفكرية إذكاء الاحترام للملكية الفكرية التوعية بالملكية الفكرية الملكية الفكرية لفائدة… الملكية الفكرية و… الملكية الفكرية في… معلومات البراءات والتكنولوجيا معلومات العلامات التجارية معلومات التصاميم الصناعية معلومات المؤشرات الجغرافية معلومات الأصناف النباتية (الأوبوف) القوانين والمعاهدات والأحكام القضائية المتعلقة بالملكية الفكرية مراجع الملكية الفكرية تقارير الملكية الفكرية حماية البراءات حماية العلامات التجارية حماية التصاميم الصناعية حماية المؤشرات الجغرافية حماية الأصناف النباتية (الأوبوف) تسوية المنازعات المتعلقة بالملكية الفكرية حلول الأعمال التجارية لمكاتب الملكية الفكرية دفع ثمن خدمات الملكية الفكرية هيئات صنع القرار والتفاوض التعاون التنموي دعم الابتكار الشراكات بين القطاعين العام والخاص أدوات وخدمات الذكاء الاصطناعي المنظمة العمل مع الويبو المساءلة البراءات العلامات التجارية التصاميم الصناعية المؤشرات الجغرافية حق المؤلف الأسرار التجارية أكاديمية الويبو الندوات وحلقات العمل إنفاذ الملكية الفكرية WIPO ALERT إذكاء الوعي اليوم العالمي للملكية الفكرية مجلة الويبو دراسات حالة وقصص ناجحة في مجال الملكية الفكرية أخبار الملكية الفكرية جوائز الويبو الأعمال الجامعات الشعوب الأصلية الأجهزة القضائية الموارد الوراثية والمعارف التقليدية وأشكال التعبير الثقافي التقليدي الاقتصاد التمويل الأصول غير الملموسة المساواة بين الجنسين الصحة العالمية تغير المناخ سياسة المنافسة أهداف التنمية المستدامة التكنولوجيات الحدودية التطبيقات المحمولة الرياضة السياحة ركن البراءات تحليلات البراءات التصنيف الدولي للبراءات أَردي – البحث لأغراض الابتكار أَردي – البحث لأغراض الابتكار قاعدة البيانات العالمية للعلامات مرصد مدريد قاعدة بيانات المادة 6(ثالثاً) تصنيف نيس تصنيف فيينا قاعدة البيانات العالمية للتصاميم نشرة التصاميم الدولية قاعدة بيانات Hague Express تصنيف لوكارنو قاعدة بيانات Lisbon Express قاعدة البيانات العالمية للعلامات الخاصة بالمؤشرات الجغرافية قاعدة بيانات الأصناف النباتية (PLUTO) قاعدة بيانات الأجناس والأنواع (GENIE) المعاهدات التي تديرها الويبو ويبو لكس - القوانين والمعاهدات والأحكام القضائية المتعلقة بالملكية الفكرية معايير الويبو إحصاءات الملكية الفكرية ويبو بورل (المصطلحات) منشورات الويبو البيانات القطرية الخاصة بالملكية الفكرية مركز الويبو للمعارف الاتجاهات التكنولوجية للويبو مؤشر الابتكار العالمي التقرير العالمي للملكية الفكرية معاهدة التعاون بشأن البراءات – نظام البراءات الدولي ePCT بودابست – نظام الإيداع الدولي للكائنات الدقيقة مدريد – النظام الدولي للعلامات التجارية eMadrid الحماية بموجب المادة 6(ثالثاً) (الشعارات الشرفية، الأعلام، شعارات الدول) لاهاي – النظام الدولي للتصاميم eHague لشبونة – النظام الدولي لتسميات المنشأ والمؤشرات الجغرافية eLisbon UPOV PRISMA UPOV e-PVP Administration UPOV e-PVP DUS Exchange الوساطة التحكيم قرارات الخبراء المنازعات المتعلقة بأسماء الحقول نظام النفاذ المركزي إلى نتائج البحث والفحص (CASE) خدمة النفاذ الرقمي (DAS) WIPO Pay الحساب الجاري لدى الويبو جمعيات الويبو اللجان الدائمة الجدول الزمني للاجتماعات WIPO Webcast وثائق الويبو الرسمية أجندة التنمية المساعدة التقنية مؤسسات التدريب في مجال الملكية الفكرية الدعم المتعلق بكوفيد-19 الاستراتيجيات الوطنية للملكية الفكرية المساعدة في مجالي السياسة والتشريع محور التعاون مراكز دعم التكنولوجيا والابتكار نقل التكنولوجيا برنامج مساعدة المخترعين WIPO GREEN WIPO's PAT-INFORMED اتحاد الكتب الميسّرة اتحاد الويبو للمبدعين WIPO Translate أداة تحويل الكلام إلى نص مساعد التصنيف الدول الأعضاء المراقبون المدير العام الأنشطة بحسب كل وحدة المكاتب الخارجية المناصب الشاغرة المشتريات النتائج والميزانية التقارير المالية الرقابة
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القوانين المعاهدات الأحكام التصفح بحسب الاختصاص القضائي

قانون خدمات البث الإذاعي لعام 1992 (بصيغته الموحدة بتاريخ 23 يونيو 2017)، أستراليا

عودة للخلف
النص مستبدل  الذهاب إلى أحدث إصدار في ويبو لِكس
التفاصيل التفاصيل سنة الإصدار 2017 تواريخ الاعتماد : 14 يوليو 1992 نوع النص قوانين ذات صلة بالملكية الفكرية الموضوع حق المؤلف والحقوق المجاورة، إنفاذ قوانين الملكية الفكرية والقوانين ذات الصلة، مواضيع أخرى

المواد المتاحة

النصوص الرئيسية النصوص ذات الصلة
النصوص الإضافية الأعداد (1 نصوص) الأعداد (1 نصوص) بالإنكليزية Broadcasting Services Act 1992 (consolidated as of June 23, 2017) 1       2      
 Broadcasting Services Act 1992 (consolidated as of June 23, 2017)

Prepared by the Office of Parliamentary Counsel, Canberra

Broadcasting Services Act 1992

No. 110, 1992

Compilation No. 86

Compilation date: 23 June 2017

Includes amendments up to: Act No. 51, 2017

Registered: 4 July 2017

This compilation is in 2 volumes

Volume 1: sections 1–218

Schedules 1 and 2

Volume 2: Schedules 4–7

Endnotes

Each volume has its own contents

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About this compilation

This compilation

This is a compilation of the Broadcasting Services Act 1992 that shows the text

of the law as amended and in force on 23 June 2017 (the compilation date).

The notes at the end of this compilation (the endnotes) include information

about amending laws and the amendment history of provisions of the compiled

law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the

compiled law. Any uncommenced amendments affecting the law are accessible

on the Legislation Register (www.legislation.gov.au). The details of

amendments made up to, but not commenced at, the compilation date are

underlined in the endnotes. For more information on any uncommenced

amendments, see the series page on the Legislation Register for the compiled

law.

Application, saving and transitional provisions for provisions and

amendments

If the operation of a provision or amendment of the compiled law is affected by

an application, saving or transitional provision that is not included in this

compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see

the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as

modified but the modification does not amend the text of the law. Accordingly,

this compilation does not show the text of the compiled law as modified. For

more information on any modifications, see the series page on the Legislation

Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a

provision of the law, details are included in the endnotes.

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Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 .....................................................................6

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.................................................23

8AD Deemed radio broadcasting licence areas ........................24

8AF Regional racing service radio licence ..............................26

8B Remote Indigenous community.......................................27

9 Act to bind the Crown .....................................................27

10 Extension of Act to the external Territories.....................28

10AA Operation in relation to Norfolk Island ...........................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.....................................................35

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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 39 23 Planning criteria ..............................................................39

26 Preparation of licence area plans .....................................39

26AA Compliance with television licence area plan..................42

26C Licence area plans not required to deal with

certain digital radio broadcasting services.......................43

26D Licence area plans—how digital radio

broadcasting services may be dealt with .........................44

29 Designation of licence areas ............................................45

30 ACMA may determine population figures ......................45

31 Minister may reserve capacity for national

broadcasters or community broadcasters .........................46

33 Development of technical planning guidelines................46

34 Alternative uses of broadcasting services bands..............46

Part 4—Commercial television broadcasting licences and

commercial radio broadcasting licences 49

Division 1—Allocation of licences 49

36 ACMA to determine system for allocating licences ........49

36A Commercial radio broadcasting licences to provide

analog or digital commercial radio broadcasting

services............................................................................50

37 When licences must not be allocated...............................51

37A Limitation on number of commercial television

broadcasting licences.......................................................51

38 ACMA to advertise for applications for certain

licences............................................................................52

38A Additional commercial television licences in

single markets..................................................................52

38B Additional commercial television licences in

2-station markets .............................................................54

38C Commercial television broadcasting licences—

services provided with the use of a satellite ....................58

39 Additional commercial radio licences in single

markets ............................................................................62

40 Allocation of other licences.............................................65

41 When persons are regarded as suitable ............................68

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Division 2—Services authorised by licences 70

41C Services authorised by commercial television

broadcasting licences.......................................................70

41CA Services authorised by commercial television

broadcasting licences allocated under section 38C..........70

41D Services authorised by commercial radio

broadcasting licences.......................................................76

Division 3—Licence conditions 79

42 Conditions of commercial broadcasting licences ............79

43 ACMA may impose additional conditions ......................79

43A Material of local significance—regional

aggregated commercial television broadcasting

licences............................................................................80

43AA Local news to be provided to section 38C

licensees by regional commercial television

broadcasting licensees .....................................................81

43AB Commercial television programs to be provided to

section 38C licensees by metropolitan commercial

television broadcasting licensees.....................................84

43AC Commercial television programs to be provided to

section 38C licensees by remote terrestrial

licensees ..........................................................................86

43AD Compensation for acquisition of property .......................87

43B Local presence—regional commercial radio

broadcasting licences.......................................................88

43C Local content—regional commercial radio

broadcasting licences.......................................................89

43D Special licence conditions relating to digital radio

commercial broadcasting services ...................................92

44 Matters to which conditions may relate...........................95

Division 4—General provisions 96

45 Duration of licences.........................................................96

46 Applications for renewal .................................................96

47 ACMA to renew licences unless it is aware of

special circumstances ......................................................96

48 Transfer of commercial broadcasting licences ................97

49 Surrender of commercial broadcasting licences ..............97

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Part 5—Control of commercial broadcasting licences and

datacasting transmitter licences 98

Division 1—Preliminary 98

50A This Part does not apply in relation to licences

allocated under section 38C or subsection 40(1) .............98

50 Interpretation—knowledge of company ..........................98

51 Means of dealing with overlapping licence areas ............98

51A This Part does not apply to certain channel B

datacasting transmitter licences .......................................99

52 Changes in licence area populations not to put

persons in breach of this Part...........................................99

52A Newspapers—additional constitutional basis ..................99

Division 2—Limitation on control 100

Subdivision A—Commercial broadcasting licences 100

53 Limitation on control of commercial television

broadcasting licences.....................................................100

54 Limitation on control of commercial radio

broadcasting licences.....................................................100

Subdivision B—Commercial television broadcasting licences and

datacasting transmitter licences 100

54A Limitation on control of commercial television

broadcasting licences and datacasting transmitter

licences..........................................................................100

Division 3—Limitation on directorships 101

Subdivision A—Television and radio 101

55 Limitation on numbers of directorships—

television .......................................................................101

56 Limitation on numbers of directorships—radio.............102

Subdivision B—Television and datacasting 102

56A Limitation on directorships—television and

datacasting.....................................................................102

Division 5—Newspapers associated with licence areas 104

59 Newspapers associated with commercial television

or radio broadcasting licence areas................................104

Division 5A—Media diversity 107

Subdivision A—Introduction 107

61AA Definitions.....................................................................107

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61AB Unacceptable media diversity situation .........................109

61AC Points.............................................................................109

61AD Statutory control rules ...................................................112

61AE Shared content test ........................................................112

61AEA Unacceptable 3-way control situation ...........................113

61AF Overlapping licence areas..............................................113

Subdivision B—Prohibition of transactions that result in an

unacceptable media diversity situation coming

into existence etc. 114

61AG Prohibition of transactions that result in an

unacceptable media diversity situation coming into

existence—offence ........................................................114

61AH Prohibition of transactions that result in an

unacceptable media diversity situation coming into

existence—civil penalty ................................................114

61AJ Prior approval of transactions that result in an

unacceptable media diversity situation coming into

existence etc. .................................................................115

61AK Extension of time for compliance with prior

approval notice ..............................................................117

61AL Breach of prior approval notice—offence .....................118

61AM Breach of prior approval notice—civil penalty .............119

Subdivision BA—Prohibition of transactions that result in an

unacceptable 3-way control situation coming into

existence etc. 119

61AMA Prohibition of transactions that result in an

unacceptable 3-way control situation coming into

existence—offence ........................................................119

61AMB Prohibition of transactions that result in an

unacceptable 3-way control situation coming into

existence—civil penalty ................................................120

61AMC Prior approval of transactions that result in an

unacceptable 3-way control situation coming into

existence etc. .................................................................120

61AMD Extension of time for compliance with prior

approval notice ..............................................................122

61AME Breach of prior approval notice—offence .....................123

61AMF Breach of prior approval notice—civil penalty .............123

Subdivision C—Remedial directions 124

61AN Remedial directions—unacceptable media

diversity situation ..........................................................124

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61ANA Remedial directions—unacceptable 3-way control

situation.........................................................................127

61AP Extension of time for compliance with remedial

direction ........................................................................128

61AQ Breach of remedial direction—offence .........................130

61AR Breach of remedial direction—civil penalty..................130

Subdivision D—Enforceable undertakings 131

61AS Acceptance of undertakings ..........................................131

61AT Enforcement of undertakings ........................................131

Subdivision E—Register of Controlled Media Groups 132

61AU Register of Controlled Media Groups............................132

61AV How a media group is to be entered in the Register ......133

61AW Explanatory notes may be included in the Register.......133

61AX Continuity of media group.............................................133

61AY Initial registration of media groups................................134

61AZ Registration of newly-formed media group...................134

61AZA De-registration of media group that has ceased to

exist ...............................................................................138

61AZB Registration of change of controller of registered

media group...................................................................138

61AZC Registration of change of composition of media

group .............................................................................139

61AZCA ACMA must deal with notifications in order of

receipt............................................................................140

61AZD Conditional transactions ................................................140

61AZE Review and confirmation of entries and alterations

etc. .................................................................................142

61AZF Reconsideration of decisions .........................................145

61AZG Corrections of clerical errors or obvious defects ...........147

61AZH Regulations....................................................................147

Division 5B—Disclosure of cross-media relationships 148

61BA Definitions.....................................................................148

61BB Disclosure of cross-media relationship by

commercial television broadcasting licensee.................148

61BC Choice of disclosure method—commercial radio

broadcasting licensee.....................................................150

61BD Disclosure of cross-media relationship by

commercial radio broadcasting licensee—business

affairs disclosure method...............................................151

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61BE Disclosure of cross-media relationship by

commercial radio broadcasting licensee—regular

disclosure method..........................................................152

61BF Disclosure of cross-media relationship by

publisher of newspaper..................................................154

61BG Exception—political communication ............................155

61BH Matter or material about the business affairs of a

broadcasting licensee or newspaper publisher...............156

Division 5C—Local news and information requirements for

regional commercial radio broadcasting licensees 159

Subdivision A—Introduction 159

61CA Definitions.....................................................................159

61CAA This Division does not apply in relation to certain

licences..........................................................................161

61CB Trigger event .................................................................162

61CC What is local? ................................................................164

Subdivision B—Minimum service standards for local news and

information 164

61CD Licensee must meet minimum service standards

for local news and information......................................164

61CE Minimum service standards for local news and

information....................................................................165

Subdivision C—Local content plans 168

61CF Licensee must submit draft local content plan to

the ACMA.....................................................................168

61CG Content of draft or approved local content plan ............169

61CH Approval of draft local content plan..............................169

61CJ Register of approved local content plans.......................170

61CK Approved local content plan must be varied if

minimum service standards are imposed or

increased........................................................................170

61CL Approved local content plan may be varied by the

licensee..........................................................................171

61CM Approval of draft variation............................................171

61CN ACMA may review approved local content plan ..........172

61CP Compliance with approved local content plan...............173

61CPA Licensee must submit annual compliance report ...........173

61CQ Minister may direct the ACMA about the exercise

of its powers ..................................................................173

Subdivision D—Other local content requirements 174

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61CR Minister may direct the ACMA to conduct an

investigation about other local content

requirements ..................................................................174

61CS Minister may direct the ACMA to impose licence

conditions relating to local content................................174

61CT Regular reviews of local content requirements..............175

Division 6—Notification provisions 177

63 Requirement to notify changes in control......................177

64 Person who obtains control of a licence or

newspaper must notify the ACMA................................178

65A Strict liability offences ..................................................179

65B Designated infringement notice provisions ...................179

Division 7—Approval of temporary breaches 180

66 Offence for breaches without approval..........................180

67 Applications for prior approval of temporary

breaches.........................................................................181

68 Extension of time for compliance with notice ...............182

69 Breach of notice under section 67 to constitute an

offence...........................................................................183

Division 8—Action by the ACMA 184

70 Notices by the ACMA...................................................184

71 Extension of time for compliance with notice ...............185

72 Breach of notice under section 70 to constitute an

offence...........................................................................186

Division 9—Special provision for small markets 187

73 Additional licence under section 38A not to result

in breach of ownership limits ........................................187

73A Additional licence allocated under section 38B not

to result in breach of control rules .................................187

Division 10—Prior opinions by the ACMA 188

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 ...............................................188

Division 11—Miscellaneous 190

75 Register of matters under this Part ................................190

76 Continuing offences ......................................................190

77 Part has effect notwithstanding Competition and

Consumer Act................................................................191

78 Part not to invalidate appointments ...............................191

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Part 6—Community broadcasting licences 192 79 Interpretation .................................................................192

79A Application....................................................................192

80 ACMA to advertise for applications for BSB

community broadcasting licences..................................192

81 When licences must not be allocated.............................193

82 Other community broadcasting licences........................193

83 When persons are regarded as suitable ..........................193

84 Allocation of community broadcasting licences............194

84A Designated community radio broadcasting licences

to provide analog or digital services ..............................195

85 ACMA not required to allocate community

broadcasting licence to any applicant ............................197

85A Services authorised by designated community

radio broadcasting licences............................................197

86 Conditions of community broadcasting licences ...........199

87 ACMA may impose additional conditions on

community broadcasting licences..................................199

87A Additional conditions on CTV licences.........................200

87B Special licence condition relating to digital

community radio broadcasting services.........................202

88 Matters to which conditions may relate.........................202

89 Duration of community broadcasting licences ..............202

90 Applications for renewal of community

broadcasting licences.....................................................203

91 ACMA may renew community broadcasting

licences..........................................................................204

91A Transfer of community broadcasting licences ...............205

92 Surrender of community broadcasting licences .............207

Part 6A—Temporary community broadcasting licences 208 92A Interpretation .................................................................208

92B Temporary community broadcasting licences ...............208

92C Applicants for temporary community broadcasting

licences..........................................................................208

92D When applicants and licensees are regarded as

suitable ..........................................................................209

92E Criteria for deciding whether to allocate a licence ........210

92F Licences to accord with alternative planning

procedures .....................................................................211

92G Licence area, timing conditions and licence period.......211

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92H Conditions of temporary community broadcasting

licences..........................................................................211

92J ACMA may vary conditions or periods, or impose

new conditions...............................................................212

92K Duration of temporary community broadcasting

licences..........................................................................213

92L Surrender of temporary community broadcasting

licences..........................................................................213

Part 7—Subscription television broadcasting services 214

Division 1—Allocation of subscription television broadcasting

licences 214

95 When subscription television broadcasting licence

must not be allocated.....................................................214

96 Allocation of other subscription television

broadcasting licences.....................................................214

97 Requests to Australian Competition and Consumer

Commission...................................................................215

98 Suitability for allocation of licence................................216

98D Compensation................................................................217

Division 2—Conditions of subscription television broadcasting

licence 218

99 Conditions applicable to subscription television

broadcasting licence ......................................................218

100 Matters to which conditions may relate.........................219

Division 2A—Eligible drama expenditure 221

Subdivision A—Introduction 221

103A Simplified outline..........................................................221

103B Definitions.....................................................................222

103C Channel providers .........................................................225

103D Part-channel providers...................................................226

103E Pass-through providers ..................................................226

103F Part-pass-through providers...........................................227

103G Supply of channel or package........................................227

103H Non-designated pre-production expenditure not to

be counted unless principal photography has

commenced ...................................................................228

103J Cash-based accounting—when expenditure is

incurred .........................................................................228

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103JA When designated script development expenditure

is incurred in relation to an eligible drama program

etc. .................................................................................228

103K When expenditure incurred on a new eligible

drama program ..............................................................231

103L ACMA may make determinations about what

constitutes program expenditure....................................231

103M Expenditure to be nominated only once in meeting

licence conditions..........................................................233

Subdivision B—Channel provider supplies channel 234

103N 10% minimum eligible drama expenditure—

channel provider supplies channel.................................234

103NA Carry-forward eligible drama expenditure ....................236

103P Shortfall of eligible drama expenditure—channel

provider supplies channel exclusively to licensee .........236

103Q Shortfall of eligible drama expenditure—channel

provider supplies channel to multiple licensees.............238

Subdivision C—Pass-through provider supplies channel 241

103R 10% minimum eligible drama expenditure—

pass-through provider supplies channel.........................241

103RA Carry-forward eligible drama expenditure ....................243

103S Shortfall of eligible drama expenditure—

pass-through provider supplies channel.........................244

Subdivision D—Licensee supplies all program material 245

103T 10% minimum eligible drama expenditure—

licensee supplies all program material...........................245

103TA Carry-forward eligible drama expenditure ....................247

Subdivision E—Part-channel provider supplies package of

programs 248

103U 10% minimum eligible drama expenditure—

part-channel provider supplies package of

programs........................................................................248

103UA Carry-forward eligible drama expenditure ....................249

103V Shortfall of eligible drama expenditure—

part-channel provider supplies a package of

programs exclusively to licensee ...................................250

103W Shortfall of eligible drama expenditure—

part-channel provider supplies a package of

programs to multiple licensees ......................................252

Subdivision F—Part-pass-through provider supplies package of

programs 255

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103X 10% minimum eligible drama expenditure—

part-pass-through provider supplies package of

programs........................................................................255

103XA Carry-forward eligible drama expenditure ....................256

103Y Shortfall of eligible drama expenditure—

part-pass-through provider supplies package of

programs........................................................................257

Subdivision G—Licensee supplies part of program material 259

103Z 10% minimum eligible drama expenditure—

licensee supplies part of program material ....................259

103ZAA Carry-forward eligible drama expenditure ....................260

Subdivision H—Annual returns 261

103ZA Licensee to lodge annual return.....................................261

103ZB Channel provider and part-channel provider to

lodge annual return........................................................262

103ZC ACMA may inquire into the correctness of an

annual return..................................................................263

103ZD Nominations to be attached to annual returns................263

Subdivision J—Miscellaneous 264

103ZG Anti-avoidance—transactions between persons not

at arm’s length...............................................................264

103ZH Expenditure to be expressed in Australian

currency.........................................................................264

Division 6—Miscellaneous 265

113 Transfer of subscription television broadcasting

licence ...........................................................................265

114 Surrender of subscription television broadcasting

licence ...........................................................................265

115 Minister may protect the free availability of certain

types of programs ..........................................................265

116 Certain arrangements not to result in control or in

persons being associates ................................................266

116A Use of additional capacity .............................................267

116B Application of section 51 of the Competition and

Consumer Act................................................................267

Part 8—Subscription broadcasting and narrowcasting class

licences 268 117 Determination of class licences .....................................268

118 Conditions of class licences...........................................268

119 Matters to which conditions may relate.........................268

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120 Variation of class licences .............................................269

Part 8A—Restrictions on subscription television broadcasting

services in regional areas etc. 270 121A Simplified outline..........................................................270

121B Definitions.....................................................................270

121C Identical program items.................................................271

121D Continuity of program items .........................................271

121E ACMA permission is required to provide certain

television services in regional areas ..............................272

Part 8B—International broadcasting licences 274

Division 1—Introduction 274

121F Simplified outline..........................................................274

121FAA Definitions.....................................................................275

Division 2—Allocation of international broadcasting licences 276

121FA Application for international broadcasting licence ........276

121FB Corporate status and suitability .....................................276

121FC Unsuitable applicant ......................................................278

121FD Australia’s national interest ...........................................279

121FE Allocation of licence .....................................................281

Division 3—Obligations of international broadcasting licensees 282

121FF Conditions of international broadcasting licences .........282

Division 4—Remedies 283

121FG Prohibition on providing an international

broadcasting service without a licence ..........................283

121FH Remedial directions—unlicensed international

broadcasting services.....................................................283

121FHA Breach of remedial direction—offence .........................284

121FHB Breach of remedial direction—civil penalty

provision........................................................................284

121FJ Offence for breach of conditions of international

broadcasting licence ......................................................284

121FJA Civil penalty provision relating to breach of

conditions of international broadcasting licences ..........285

121FJB Remedial directions—licence conditions ......................285

121FJC Breach of remedial direction—offence .........................286

121FJD Breach of remedial direction—civil penalty

provision........................................................................286

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121FK Cancellation of licence if service does not

commence within 2 years ..............................................286

121FL Formal warning, or cancellation or suspension of

licence, where service is contrary to Australia’s

national interest .............................................................287

Division 4A—Nominated broadcaster declarations 290

121FLA Object of this Division ..................................................290

121FLB Applications for nominated broadcaster

declarations ...................................................................290

121FLC Making a nominated broadcaster declaration ................290

121FLD Effect of nominated broadcaster declaration .................292

121FLE Conditions of nominated broadcaster declarations ........293

121FLF Offence for breach of conditions of nominated

broadcaster declaration..................................................293

121FLG Revocation of nominated broadcaster declaration .........294

121FLH Cancellation of licence if declaration ceases to be

in force and licensee is not an Australian company.......296

121FLJ Register of nominated broadcaster declarations ............297

Division 5—ACMA to assist the Minister for Foreign Affairs 298

121FM Report about compliance with international

broadcasting guidelines .................................................298

121FN Records of broadcasts....................................................298

Division 6—Miscellaneous 299

121FP International broadcasting guidelines ............................299

121FQ Surrender of international broadcasting licences ...........299

121FR Complaints about international broadcasting

services..........................................................................299

121FS Statements about decisions of the Minister for

Foreign Affairs ..............................................................299

Part 9—Content rules, program standards and codes of

practice 301 121G Australian content—transmission quota........................301

122 Program standards for children’s programs and

Australian content .........................................................305

123 Development of codes of practice .................................307

123B Review by the ACMA—application of code of

practice to section 38C licences.....................................312

124 ACMA to maintain Register of codes of practice..........313

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125 ACMA may determine program standards where

codes of practice fail or where no code of practice

developed ......................................................................313

126 Consultation on standards..............................................314

127 Notification of determination or variation or

revocation of standards..................................................314

128 Standards and codes to be amendable by the

Parliament .....................................................................314

129 Limitation of ACMA’s power in relation to

standards........................................................................315

130 Application of the Competition and Consumer Act ......315

Part 9A—Technical standards 316 130A Technical standards for digital transmission—

television etc..................................................................316

130AA Technical standards for digital transmission—

radio etc.........................................................................318

130AB Technical standards relating to the operation of

multiplex transmitters....................................................319

130AC Technical standards for digital transmission of

television services provided with the use of a

satellite ..........................................................................319

130B Technical standards for domestic digital reception

equipment—television etc. ............................................320

130BA Technical standards for domestic digital reception

equipment—radio etc. ...................................................322

130BB Technical standards for domestic digital reception

equipment—television services provided with the

use of a satellite .............................................................325

Part 9B—Industry codes and industry standards 329

Division 1—Simplified outline 329

130C Simplified outline..........................................................329

Division 2—Interpretation 330

130D Industry codes ...............................................................330

130E Industry standards .........................................................330

130F Industry activities ..........................................................330

130G Sections of the industry .................................................332

130H Participants in a section of the industry .........................333

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Division 3—General principles relating to industry codes and

industry standards 334

130J Statement of regulatory policy ......................................334

130K Examples of matters that may be dealt with by

industry codes and industry standards ...........................334

130L Industry codes and industry standards not to deal

with certain matters .......................................................335

Division 4—Industry codes 336

130M Registration of industry codes .......................................336

130N ACMA may request codes.............................................337

130P Publication of notice where no body or association

represents a section of the industry................................338

130Q Replacement of industry codes......................................339

Division 5—Industry standards 340

130R ACMA may determine an industry standard if a

request for an industry code is not complied with .........340

130S ACMA may determine industry standard where no

industry body or association formed..............................341

130T ACMA may determine industry standards—total

failure of industry codes ................................................342

130U ACMA may determine industry standards—partial

failure of industry codes ................................................343

130V Compliance with industry standards..............................345

130W Formal warnings—breach of industry standards ...........345

130X Variation of industry standards......................................345

130Y Revocation of industry standards ..................................346

Division 6—Register of industry codes and industry standards 347

130ZA ACMA to maintain Register of industry codes and

industry standards..........................................................347

Part 9C—Access to commercial television broadcasting services

provided with the use of a satellite 348 130ZBA Simplified outline..........................................................348

130ZB Objectives of conditional access scheme—South

Eastern Australia TV3 licence area and Northern

Australia TV3 licence area ............................................348

130ZBB Objectives of conditional access scheme—

Western Australia TV3 licence area ..............................353

130ZC Registration of conditional access scheme

developed by representative body or association...........357

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130ZCAA ACMA may invite representative body or

association to develop a revised conditional access

scheme...........................................................................359

130ZCAB ACMA may request development of replacement

conditional access scheme.............................................360

130ZCA Registration of conditional access scheme

formulated by the ACMA..............................................361

130ZD Replacement of conditional access scheme ...................364

130ZE ACMA to maintain register of conditional access

schemes .........................................................................364

130ZF ACMA may direct a scheme administrator to issue

a reception certificate etc...............................................365

130ZFA Adequate reception........................................................368

130ZG Applicable terrestrial digital commercial television

broadcasting services.....................................................369

130ZH Declared service-deficient areas ....................................370

Part 9D—Captioning 373

Division 1—Introduction 373

130ZJ Simplified outline..........................................................373

130ZK Definitions.....................................................................373

130ZKA Definition of channel provider ......................................377

130ZKB Definition of part-channel provider ..............................377

130ZKC Supply of channel or package........................................378

130ZL Designated viewing hours .............................................378

130ZM This Part does not apply to foreign language

programs........................................................................378

130ZN This Part does not apply to programs that consist

wholly of music.............................................................379

130ZO Captioning service provided for part of program ..........379

130ZP Multiple subscription television services provided

by licensee .....................................................................379

130ZQ Television service provided in a period.........................380

Division 2—Captioning obligations of commercial television

broadcasting licensees and national broadcasters 381

130ZR Captioning obligations—basic rule ...............................381

130ZS Captioning obligations—special rules for

multi-channelled services ..............................................384

130ZUA Exemption orders and target reduction orders—

unjustifiable hardship ....................................................386

130ZUAA Effect of target reduction order .....................................391

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130ZUB Certain breaches to be disregarded ................................393

Division 3—Captioning obligations of subscription television

licensees 395

130ZV Annual captioning targets—subscription television

licensees ........................................................................395

130ZVA Categories for subscription television movie

services..........................................................................398

130ZW Categories for subscription television general

entertainment services ...................................................399

130ZX Exemptions—certain subscription television

services provided before 1 July 2022 ............................401

130ZY Exemption orders and target reduction orders—

unjustifiable hardship ....................................................407

130ZYA Effect of target reduction order .....................................411

130ZZ Captioning services for repeats of television

programs........................................................................412

130ZZAA Captioning services for simultaneously transmitted

television programs .......................................................412

130ZZAB Certain breaches to be disregarded ................................413

Division 4—Captioning standards 414

130ZZA Captioning standards .....................................................414

Division 5—Emergency warnings 416

130ZZB Emergency warnings .....................................................416

Division 6—Reports and record-keeping 418

130ZZC Annual compliance reports............................................418

130ZZD Record-keeping .............................................................419

Division 7—Review of this Part etc. 421

130ZZE Review of this Part etc...................................................421

Part 10—Remedies for breaches of licensing provisions 422

Division 1—Offences for providing unlicensed services 422

131 Prohibition on providing a commercial television

broadcasting service without a licence ..........................422

132 Prohibition on providing a subscription television

broadcasting service without a licence ..........................422

133 Prohibition on providing a commercial radio

broadcasting service without a licence ..........................422

134 Prohibition on providing a community television

broadcasting service without a licence ..........................422

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135 Prohibition on providing a community radio

broadcasting service without a licence ..........................423

136 Continuing offences ......................................................423

Division 1A—Civil penalty provisions relating to unlicensed

services 424

136A Prohibition on providing a commercial television

broadcasting service without a licence ..........................424

136B Prohibition on providing a subscription television

broadcasting service without a licence ..........................424

136C Prohibition on providing a commercial radio

broadcasting service without a licence ..........................424

136D Prohibition on providing a community television

broadcasting service without a licence ..........................424

136E Prohibition on providing a community radio

broadcasting service without a licence ..........................425

136F Continuing breaches ......................................................425

Division 2—Action by ACMA where a person provides a service

without a licence 426

137 Remedial directions—unlicensed services ....................426

138 Breach of remedial direction—offences ........................426

138A Breach of remedial direction—civil penalty

provision........................................................................427

Division 3—Action in relation to breaches by licensees 428

139 Offence for breach of conditions of licences and

class licences .................................................................428

140 Continuing offences ......................................................430

140A Civil penalty provisions relating to breach of

conditions of licences and class licences .......................430

141 Remedial directions—licence conditions, class

licences and codes of practice .......................................431

142 Breach of remedial direction—offences ........................434

142A Breach of remedial direction—civil penalty

provision........................................................................435

143 Suspension and cancellation..........................................436

Division 4—Action in relation to class licences 438

144 Application to Federal Court .........................................438

Part 10A—Anti-hoarding rules 439

Division 1—Introduction 439

146A Simplified outline..........................................................439

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146B Definitions.....................................................................440

146C Designated events and designated series of events ........442

146CA When event or series is eligible for delayed

televising in the Central-Western time zones ................442

146D Program suppliers..........................................................443

Division 2—Commercial television broadcasting licensees 446

146E Anti-hoarding rule—licensees.......................................446

146F Anti-hoarding rule—program suppliers ........................447

146G What constitutes an offer to transfer rights to

televise live events ........................................................449

146H Offers to transfer rights to televise live events ..............449

146J Contracts to acquire rights to televise live events

must authorise the transfer of the rights ........................450

146K Simultaneous events in a series .....................................451

146KA Delayed televising in the Central-Western time

zones..............................................................................452

Division 3—National broadcasters 455

146L Anti-hoarding rule .........................................................455

146M What constitutes an offer to transfer rights to

televise live events ........................................................456

146N Offers to transfer rights to televise live events ..............457

146P Contracts to acquire rights to televise live events

must authorise the transfer of the rights ........................457

146Q Simultaneous events in a series .....................................458

146R Delayed televising in the Central-Western time

zones..............................................................................458

Part 11—Complaints to the ACMA 461

Division 1—Complaints relating to action under licences and

class licences 461

147 Complaints relating to offences or breach of

licence conditions..........................................................461

148 Complaints under codes of practice...............................461

149 Investigation of complaints by the ACMA....................462

Division 2—Complaints relating to national broadcasting

services or datacasting services provided by the

ABC or SBS 463

150 Complaints relating to national broadcasting

services or datacasting services provided by the

ABC or SBS ..................................................................463

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151 Investigation of complaints relating to the ABC or

SBS by the ACMA........................................................464

152 Action by ACMA where complaint justified.................464

153 ACMA may report to Minister on results of

recommendation ............................................................464

Part 13—Information gathering by the ACMA and the

Commissioner 465

Division 1—Introduction 465

168 Obtaining of information by the ACMA .......................465

169 Decision-making by the ACMA not limited to

matters discovered by investigation or hearing .............465

169A Investigation by the Commissioner ...............................466

Division 2—Investigations 467

170 Investigations by the ACMA.........................................467

171 Minister may direct ACMA to conduct an

investigation ..................................................................467

172 ACMA may call for written submissions from the

public.............................................................................467

173 Notice requiring appearance for examination................468

174 Examination on oath or affirmation...............................468

175 Examination to take place in private .............................469

176 Record to be made of examination ................................469

177 Production of documents for inspection ........................470

178 Report on investigation .................................................470

179 Publication of report......................................................471

180 Person adversely affected by report to be given

opportunity to comment ................................................471

Division 3—Hearings 472

182 Power to hold hearings ..................................................472

183 Minister may direct ACMA to hold a hearing ...............472

184 Procedure for conduct of hearings.................................472

185 ACMA may direct holding of conference .....................472

186 Hearings to be informal, quick and economical ............473

187 Hearings to be in public except in exceptional

cases ..............................................................................473

188 Public notice of hearings ...............................................473

189 Confidential material not to be published......................473

190 Directions as to private hearings ...................................474

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191 Constitution of ACMA for conduct of hearings ............474

192 Presiding member..........................................................474

193 Reconstitution of hearing panel .....................................474

194 Exercise of powers in relation to conduct of

hearing...........................................................................475

195 Summons to give evidence or produce documents ........475

196 Written submissions may be made to hearing ...............475

197 Evidence and submissions to be taken into account

by ACMA......................................................................475

198 Representation at hearings.............................................476

199 Reports on hearings .......................................................476

Division 4—General 477

200 Protection of members and persons giving

evidence ........................................................................477

201 Protection of panel conducting hearing .........................477

202 Non-compliance with requirement to give

evidence ........................................................................477

203 Proceedings for defamation not to lie............................479

Part 14—Appeals to the Administrative Appeals Tribunal 481 204 Appeals to the Administrative Appeals Tribunal...........481

205 Notification of decisions to include notification of

reasons and appeal rights...............................................488

Part 14A—Accounts and payment of licence fees 489 205A Definitions.....................................................................489

205B Broadcasting licensees to keep accounts .......................489

205BA Datacasting transmitter licensees to keep accounts .......491

205C Payment of licence fees .................................................492

205D Penalty for unpaid licence fees ......................................493

Part 14B—Civil penalties 497

Division 1—Ancillary contravention of civil penalty provision 497

205E Ancillary contravention of civil penalty provision ........497

Division 2—Civil penalty orders 498

205EA Simplified outline..........................................................498

205F Civil penalty orders .......................................................498

205G Who may apply for a civil penalty order .......................500

205H 2 or more proceedings may be heard together ...............500

205J Time limit for application for an order ..........................500

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205K Civil evidence and procedure rules for civil

penalty orders ................................................................500

205L Civil proceedings after criminal proceedings ................500

205M Criminal proceedings during civil proceedings .............500

205N Criminal proceedings after civil proceedings ................501

205P Evidence given in proceedings for a civil penalty

order not admissible in criminal proceedings ................501

205PAA Mistake of fact...............................................................501

Part 14C—Injunctions 503 205PA Simplified outline..........................................................503

205Q Injunctions.....................................................................503

205R Interim injunctions ........................................................504

205S Discharge etc. of injunctions .........................................504

205T Certain limits on granting injunctions not to apply .......504

205U Other powers of the Federal Court unaffected...............505

Part 14D—Enforceable undertakings 506 205V Simplified outline..........................................................506

205W Acceptance of undertakings ..........................................506

205X Enforcement of undertakings ........................................507

Part 14E—Infringement notices 508 205XAA Simplified outline..........................................................508

205XA Formal warning .............................................................508

205Y When an infringement notice can be given ...................508

205Z Matters to be included in an infringement notice ..........509

205ZA Amount of penalty.........................................................509

205ZB Withdrawal of an infringement notice ...........................510

205ZC What happens if the penalty is paid...............................510

205ZD Effect of this Part on criminal proceedings ...................510

205ZE Appointment of authorised infringement notice

officer ............................................................................511

205ZF Regulations....................................................................511

Part 15—Miscellaneous 512 206 Broadcasting or datacasting taken to be

publication in permanent form ......................................512

207 Amounts of fees ............................................................512

209 Prosecutions ..................................................................512

210 Publication of opinions..................................................512

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211AA Time when a television program is broadcast—

certain terrestrial licence areas ......................................513

211A Time when a television program is broadcast—

South Eastern Australia TV3 and Northern

Australia TV3 licence areas...........................................514

212 Special provisions for re-transmission of programs ......516

212A Self-help providers ........................................................518

212B Declared self-help providers and excluded

providers........................................................................520

213 Penalties for continuing offences ..................................521

214 Procedure relating to continuing offences .....................521

215 Guidelines relating to ACMA’s enforcement

powers etc......................................................................522

216 Ministerial consultative and advisory bodies.................523

216A Schedule 4 (digital television broadcasting) ..................523

216B Schedule 5 (online services) ..........................................523

216C Schedule 6 (datacasting services) ..................................523

216D Schedule 7 (content services) ........................................523

217 Regulations....................................................................523

218 Channel sharing.............................................................524

Schedule 1—Control and ownership of company

interests 525

Part 1—Introduction 525 1 Control—general ...........................................................525

Part 2—When person is in a position to exercise control 527 2 When person is in a position to exercise control ...........527

3 When person is in a position to exercise control of

a newspaper ...................................................................530

4 Special provisions for authorised lenders ......................531

Part 3—Deemed control 535 5 Explanation of examples ...............................................535

6 The 15% rule .................................................................535

7 Application of method through chain of companies ......535

Part 4—Tracing of ownership 536 8 Tracing of ownership.....................................................536

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Schedule 2—Standard conditions 538

Part 1—Interpretation 538 1 Definitions.....................................................................538

2 Interpretation—certain things do not amount to

broadcasting of advertisements .....................................541

Part 2—Special conditions 543 3 Broadcasting of political or controversial material........543

3A Broadcasting of election advertisements .......................543

4 Identification of certain political matter ........................544

5 Records of matter broadcast ..........................................545

6 Advertisements relating to medicines............................546

Part 3—Commercial television broadcasting licences 548

Division 1—General 548

7 Conditions of commercial television broadcasting

licences..........................................................................548

Division 2—Licences allocated under section 38C 553

7A Common conditions ......................................................553

7B Conditions about the provision of primary

commercial television broadcasting services.................553

7C Conditions about the provision of non-primary

commercial television broadcasting services.................557

7D Condition about the provision of local news

services..........................................................................561

7E Exemption—provision of new commercial

television broadcasting services not technically

feasible ..........................................................................561

7F Exemption—commercial television broadcasting

services with the same program content ........................562

7G Delay in commencement of new commercial

television broadcasting services ....................................564

7J Program content ............................................................565

7L Definitions.....................................................................565

Part 4—Commercial radio broadcasting licences 567 8 Standard conditions of commercial radio

broadcasting licences.....................................................567

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Part 5—Community broadcasting licences 571 9 Conditions applicable to services provided under

community broadcasting licences..................................571

Part 6—Subscription television broadcasting licences 576 10 Conditions applicable to subscription television

broadcasting licences.....................................................576

Part 7—Services provided under class licences 579 11 Conditions applicable to broadcasting services

provided under class licences ........................................579

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Section 1

Broadcasting Services Act 1992 1

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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

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Section 3

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(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

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(m) to protect children from exposure to internet content that is

unsuitable for children; and

(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:

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(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

(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.

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internet service provider has the same meaning as in Schedule 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.

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6 Interpretation

(1) In this Act, unless the contrary intention appears:

ACMA means the Australian Communications and Media

Authority.

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:

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(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

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 2001;

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:

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(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,

under subsection (2), not to fall within this definition.

broadcasting services bands means:

(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.

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.

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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.

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 41C, are authorised by the

licence.

commercial television broadcasting service means a commercial

broadcasting service that provides television programs.

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Commissioner means the eSafety Commissioner.

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

(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.

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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.

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.

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designated infringement notice provision means a provision

declared by this Act to be a designated infringement notice

provision.

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 multiplex transmitter licence has the same meaning

as in the Radiocommunications Act 1992.

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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.

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:

(a) in the definition of associate, section 7, Part 5 and

Schedule 1:

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(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: See also section 8AD, which deals with deemed radio broadcasting

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.

national broadcaster means the provider of a national broadcasting

service referred to in paragraph 13(1)(a) or (b).

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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.

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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.

primary commercial television broadcasting service, in relation to

a commercial television broadcasting licence, has the same

meaning as in Schedule 4.

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

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(b) Remote Commercial Radio Service North East Zone RA1; or

(c) Remote Commercial Radio Service Western Zone RA1.

remote Indigenous community has the meaning given by

section 8B.

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.

subscription broadcasting service has the meaning given by

section 16.

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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:

(a) arrangements under which a person becomes a director of a

company; and

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(b) the acquisition of things by gift or inheritance.

(2) For the purposes of paragraph (c) of the definition of broadcasting

service in subsection (1), the Minister may, by legislative

instrument, determine that a service, or a class of services, does not

fall within that definition.

(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:

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(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

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property of the company were distributed among members,

whether as a result of a winding-up or otherwise; and

(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.

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(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).

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;

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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:

(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.

(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.

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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.

(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.

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;

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.

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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;

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.

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(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).

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:

(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:

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(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.

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.

Total number of minutes of racing content

broadcast on the day on the broadcasting service

100 Total number of minutes

of content broadcast on the day on the

broadcasting service

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10 Extension of Act to the external Territories

This Act extends to all the external Territories.

10AA Operation in relation to Norfolk Island

The operation of this Act in relation to Norfolk Island is not

affected by the amendments made by Division 1 of Part 1 of

Schedule 5 to the Territories Legislation Amendment Act 2016.

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.

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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

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(ii) a commercial television broadcasting licence.

(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

under subsection (4).

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(4) The Minister may, by legislative instrument, specify services for

the purposes of subsection (3).

(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

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(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.

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

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(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 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:

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(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:

(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:

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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 legislative instrument:

(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.

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.

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(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 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.

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(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.

(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

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(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.

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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.

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.

(1A) To the extent to which a licence area plan prepared under

subsection (1) deals with:

(a) digital commercial radio broadcasting services; or

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(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 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

(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

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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).

(1G) A television licence area plan does not need to identify a particular

television broadcasting service by name.

(1M) Section 23 has 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.

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Ministerial direction

(8) The Minister may, by legislative instrument, direct the ACMA

about the exercise of its powers to make or vary a licence area plan

for a particular area.

(9) The ACMA must comply with a direction under subsection (8).

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.

Definitions

(13) 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.

Note: For designation of licence areas, see section 29.

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

(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:

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(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.

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

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(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.

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.

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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.

(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.

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31 Minister may reserve capacity for national broadcasters or

community broadcasters

(1) The Minister may, by legislative instrument, notify the ACMA 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.

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.

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

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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.

(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

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(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.

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Part 4—Commercial television broadcasting

licences and commercial radio

broadcasting licences

Division 1—Allocation of licences

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.

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50 Broadcasting Services Act 1992

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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

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.

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(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.

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:

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(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

(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

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(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;

(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

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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.

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

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additional commercial television broadcasting licence for the

licence area.

(1A) A notice under paragraph (1)(ca) is not a legislative instrument.

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

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(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);

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).

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(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:

(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 legislative instrument, 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.

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.

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Section 37 restrictions apply

(24) This section has effect subject to section 37.

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.

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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

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

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.

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Allocation of licence

(2) A commercial television broadcasting licence that was allocated

under this section before the commencement of Schedule 2 to the

Broadcasting and Other Legislation Amendment (Deregulation)

Act 2015 continues in force unless it is cancelled.

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

(b) if a later time is specified in the notice of cancellation—at

that later time.

Allocation of licence after cancellation etc.

(17) If the ACMA gives a notice under subsection (15) to a licensee,

cancelling the licence for a licence area, the ACMA must, within

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45 days after the giving of the notice, 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

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

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(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

(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:

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

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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;

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:

(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

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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;

(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.

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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.

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.

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(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

(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.

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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.

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

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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.

(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).

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(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).

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Division 2—Services authorised by licences

41C Services authorised by commercial television broadcasting

licences

(1) A commercial television broadcasting licence for a licence area

authorises the licensee to provide the following services in the

licence area:

(a) one or more HDTV multi-channelled commercial television

broadcasting services;

(b) one or more SDTV multi-channelled commercial television

broadcasting services.

Licences allocated under section 38C or subsection 40(1)

(2) This section does not apply to a commercial television

broadcasting licence allocated under section 38C or

subsection 40(1).

Definitions

(3) 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.

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:

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(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 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

television broadcasting service in the related terrestrial

licence area; and

(ii) the service is the 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;

(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 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

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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 primary commercial television

broadcasting service provided by the metropolitan

licensee;

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;

(fa) if:

(i) 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; and

(ii) the service is not the primary commercial television

broadcasting service provided by the related terrestrial

licensee;

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;

(fb) if:

(i) 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; and

(ii) the service is the primary commercial television

broadcasting service provided by the related terrestrial

licensee;

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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;

(fc) if:

(i) 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; and

(ii) the service is not the primary commercial television

broadcasting service provided by the metropolitan

licensee;

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;

(fd) if:

(i) 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; and

(ii) the service is the primary commercial television

broadcasting service provided by the metropolitan

licensee;

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 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

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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); or

(c) paragraph (1)(fb); or

(d) paragraph (1)(fd);

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).

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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:

(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).

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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.

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.

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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;

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.

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Subsection 40(1) licences

(7) This section does not apply to a commercial radio broadcasting

licence allocated under subsection 40(1).

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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.

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(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 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:

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(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

(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

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(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

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

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(iv) being in contempt of court;

subsection (1) does not apply to the program.

(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

(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.

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Section 43AB

84 Broadcasting Services Act 1992

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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.

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).

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;

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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.

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).

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.

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Section 43AC

86 Broadcasting Services Act 1992

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section 38C licensee means the licensee of a commercial television

broadcasting licence allocated under section 38C.

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

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(b) if paragraph (2)(b) applies—in SDTV digital mode (within

the meaning of Schedule 4).

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.

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

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Section 43B

88 Broadcasting Services Act 1992

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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.

(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.

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(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

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:

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Section 43C

90 Broadcasting Services Act 1992

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(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).

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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.

Changes in licence area populations not to put persons in breach

of condition

(4) 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 the condition;

the condition continues to apply to the person as if the previous

determination remained in force.

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.

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Section 43D

92 Broadcasting Services Act 1992

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(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

(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:

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(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:

(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

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(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.

(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;

1

Number of digital radio multiplex transmitter licences 9

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(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.

(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.

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Section 45

96 Broadcasting Services Act 1992

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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.

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(2) The ACMA must refuse to renew a licence if the ACMA decides

that subsection 41(2) applies to the licensee.

(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.

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Division 1 Preliminary

Section 50A

98 Broadcasting Services Act 1992

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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.

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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 a provision of Division 2 or 3;

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.

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Section 53

100 Broadcasting Services Act 1992

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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.

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Section 55

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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.

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Section 56

102 Broadcasting Services Act 1992

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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

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(b) be in a position to exercise control of a datacasting

transmitter licence.

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Division 5 Newspapers associated with licence areas

Section 59

104 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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(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.

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Division 5 Newspapers associated with licence areas

Section 59

106 Broadcasting Services Act 1992

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(8) In this section:

points has the same meaning as in Division 5A.

scheme has the same meaning as in Division 5A.

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Section 61AA

Broadcasting Services Act 1992 107

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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:

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108 Broadcasting Services Act 1992

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(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.

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

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Section 61AB

Broadcasting Services Act 1992 109

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(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.

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):

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Section 61AC

110 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 first radio licence area is the same as, or

is entirely within, the licence area of the commercial

radio broadcasting licence; 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 first radio licence area is the same as, or is

entirely within, the licence area of the licence; 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.

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Broadcasting Services Act 1992 111

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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 primary commercial television broadcasting

service 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:

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Section 61AD

112 Broadcasting Services Act 1992

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(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.

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Section 61AEA

Broadcasting Services Act 1992 113

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(2) For the purposes of subsection (1), ignore the following:

(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.

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.

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Section 61AG

114 Broadcasting Services Act 1992

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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:

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Broadcasting Services Act 1992 115

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(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 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;

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Section 61AJ

116 Broadcasting Services Act 1992

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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

(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:

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Section 61AK

Broadcasting Services Act 1992 117

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(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.

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:

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Section 61AL

118 Broadcasting Services Act 1992

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(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) 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.

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Section 61AM

Broadcasting Services Act 1992 119

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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.

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.

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Section 61AMB

120 Broadcasting Services Act 1992

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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.

(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:

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(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.

(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.

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Division 5A Media diversity

Section 61AMD

122 Broadcasting Services Act 1992

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(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.

(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:

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(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.

(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

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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;

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

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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;

(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;

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(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;

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

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(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

(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

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(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.

(2) An application for an extension cannot be made if the period

specified in the direction was one month.

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(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.

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Section 61AQ

130 Broadcasting Services Act 1992

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(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

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day of the making of a relevant civil penalty order or any later day)

during which the contravention continues.

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

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(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.

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.

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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.

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.

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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.

(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

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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.

(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;

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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

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;

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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;

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;

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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.

(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

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(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;

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

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Division 5A Media diversity

Section 61AZCA

140 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

(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).

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Section 61AZD

Broadcasting Services Act 1992 141

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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:

(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

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Division 5A Media diversity

Section 61AZE

142 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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Section 61AZE

Broadcasting Services Act 1992 143

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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Section 61AZE

144 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(c) the ACMA is not satisfied that the proposed transaction was

completed within 5 business days after the making of the

entry or alteration;

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

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Section 61AZF

Broadcasting Services Act 1992 145

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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

(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.

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Section 61AZF

146 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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).

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Section 61AZG

Broadcasting Services Act 1992 147

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Division 5B Disclosure of cross-media relationships

Section 61BA

148 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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:

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Section 61BB

Broadcasting Services Act 1992 149

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(a) a person is in a position to exercise control of each media

operation in a set of media operations; and

(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.

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Division 5B Disclosure of cross-media relationships

Section 61BC

150 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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

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Section 61BD

Broadcasting Services Act 1992 151

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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.

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Division 5B Disclosure of cross-media relationships

Section 61BE

152 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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.

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Section 61BE

Broadcasting Services Act 1992 153

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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:

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Section 61BF

154 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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:

(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.

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Section 61BG

Broadcasting Services Act 1992 155

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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).

(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 commits 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.

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Division 5B Disclosure of cross-media relationships

Section 61BH

156 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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;

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)).

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Section 61BH

Broadcasting Services Act 1992 157

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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:

(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.

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Division 5B Disclosure of cross-media relationships

Section 61BH

158 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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Section 61CA

Broadcasting Services Act 1992 159

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Section 61CA

160 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

draft local content plan means a draft local content plan under

Subdivision C.

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

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Section 61CAA

Broadcasting Services Act 1992 161

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(b) the licence area known as Western Suburbs Sydney RA1.

news bulletin means a regularly scheduled news bulletin.

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.

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.

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Section 61CB

162 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

61CB Trigger event

Transfer of licence

(1) For the purposes of this Division, if:

(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.

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Section 61CB

Broadcasting Services Act 1992 163

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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

(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.

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Section 61CC

164 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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).

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

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Section 61CE

Broadcasting Services Act 1992 165

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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:

(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:

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Section 61CE

166 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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.

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Section 61CE

Broadcasting Services Act 1992 167

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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

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.

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Division 5C Local news and information requirements for regional commercial radio

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Section 61CF

168 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

(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.

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Section 61CG

Broadcasting Services Act 1992 169

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

(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.

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Section 61CJ

170 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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

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Section 61CL

Broadcasting Services Act 1992 171

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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

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Section 61CN

172 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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:

(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.

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Section 61CP

Broadcasting Services Act 1992 173

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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).

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Section 61CR

174 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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

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Section 61CT

Broadcasting Services Act 1992 175

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

(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

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Section 61CT

176 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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Notification provisions Division 6

Section 63

Broadcasting Services Act 1992 177

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Division 6—Notification provisions

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;

the licensee must, within 10 business 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 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 10 business days after

becoming so aware, notify the ACMA in writing of that event.

(4) The details are to be provided in a form approved in writing by the

ACMA.

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Division 6 Notification provisions

Section 64

178 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Offence

(5) A person commits an offence if:

(a) the person is subject to a requirement under subsection (1) 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 10 business 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 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 10 business days

after becoming so aware, notify the ACMA in writing of that

position.

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Notification provisions Division 6

Section 65A

Broadcasting Services Act 1992 179

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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) 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.

65A Strict liability offences

An offence against section 63, or 64 is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

65B Designated infringement notice provisions

Sections 63, and 64 are designated infringement notice provisions.

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Division 7 Approval of temporary breaches

Section 66

180 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 commits 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) commits 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.

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Approval of temporary breaches Division 7

Section 67

Broadcasting Services Act 1992 181

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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:

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Division 7 Approval of temporary breaches

Section 68

182 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(a) receiving the application; or

(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.

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Approval of temporary breaches Division 7

Section 69

Broadcasting Services Act 1992 183

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

69 Breach of notice under section 67 to constitute an offence

A person who fails to comply with a notice under section 67

commits 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.

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Division 8 Action by the ACMA

Section 70

184 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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Action by the ACMA Division 8

Section 71

Broadcasting Services Act 1992 185

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

another person may be required to dispose of 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 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

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Division 8 Action by the ACMA

Section 72

186 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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:

(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

commits 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.

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Special provision for small markets Division 9

Section 73

Broadcasting Services Act 1992 187

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Division 10 Prior opinions by the ACMA

Section 74

188 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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Prior opinions by the ACMA Division 10

Section 74

Broadcasting Services Act 1992 189

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

(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.

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Division 11 Miscellaneous

Section 75

190 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Miscellaneous Division 11

Section 77

Broadcasting Services Act 1992 191

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

77 Part has effect notwithstanding Competition and Consumer Act

The provisions of this Part have effect notwithstanding the

Competition and Consumer Act 2010.

78 Part not to invalidate appointments

Nothing in this Part invalidates an appointment of a person as a

director of a company.

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Part 6 Community broadcasting licences

Section 79

192 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Section 81

Broadcasting Services Act 1992 193

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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:

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Section 84

194 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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 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.

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Section 84A

Broadcasting Services Act 1992 195

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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 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.

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Section 84A

196 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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

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Section 85

Broadcasting Services Act 1992 197

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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

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(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.

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.

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(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:

(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.

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(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

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;

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(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 legislative instrument, 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 legislative instrument, impose other

conditions on all CTV licences, including, but not limited to,

conditions relating to:

(a) community access to air-time; or

(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 legislative instrument, 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.

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.

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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.

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.

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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.

(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.

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(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;

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

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(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.

(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

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(b) refuse to approve the transfer.

Criteria

(4) The ACMA must not approve the transfer of a community

broadcasting licence that is a broadcasting services bands licence

if:

(a) the proposed transferee is not a company that:

(i) was formed in Australia or in an external Territory; and

(ii) represents a community interest; or

(b) in the case of a transfer of a CTV licence—the proposed

transferee is not a company limited by guarantee within the

meaning of the Corporations Act 2001; or

(c) the ACMA decides that subsection 83(2) applies to the

proposed transferee.

(5) Paragraph (4)(c) does not require the ACMA to consider the

application of subsection 83(2) in relation to a proposed transferee

before approving the transfer of a licence to the proposed

transferee.

(6) The ACMA must not approve the transfer of a community

broadcasting licence unless the ACMA is satisfied that:

(a) if the licence has not been renewed—the proposed transferee

represents the same community interest as the original

licensee represented when the licence was allocated; or

(b) if the licence has been renewed on one or more occasions—

the proposed transferee represents the same community

interest as the applicant for renewal represented when the

licence was last renewed.

(7) In deciding whether to approve the transfer of a community

broadcasting licence, the ACMA must have regard to:

(a) the principle that, except in special circumstances, the

transfer should not be approved if consideration has been, or

is to be, provided to the applicant in relation to the proposed

transfer; and

(b) such other matters (if any) as the ACMA considers relevant.

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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.

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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.

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(2) The ACMA is not to allocate a licence to an applicant if the

ACMA decides that subsection 92D(2) applies to the applicant in

relation to the licence. However, the ACMA is not required to

consider the application of subsection 92D(2) to the applicant

before allocating the licence.

(3) The ACMA may refuse to allocate a licence to an applicant if the

applicant was a temporary community broadcasting licensee for a

period but did not provide community broadcasting services in that

period. This subsection does not limit the ACMA’s discretion to

refuse to allocate a licence.

92D When applicants and licensees are regarded as suitable

(1) A company is a suitable applicant or suitable licensee in relation

to a temporary community broadcasting licence if the ACMA has

not decided that subsection (2) applies to the company in relation

to the licence.

Note: It is a condition of a temporary community broadcasting licence that

the licensee remain a suitable licensee: see paragraph 9(2)(a) of

Schedule 2.

(2) The ACMA may, if it is satisfied that allowing a company to

provide or continue to provide broadcasting services under a

temporary community broadcasting licence would lead to a

significant risk of:

(a) an offence against this Act or the regulations being

committed; or

(aa) a breach of a civil penalty provision occurring; or

(b) a breach of the conditions of the licence occurring;

decide that this subsection applies to the company in relation to the

licence.

(3) In deciding whether such a risk exists, the ACMA is to take into

account only:

(a) the business record of the company; and

(b) the company’s record in situations requiring trust and

candour; and

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(c) the business record of the chief executive and each director

and secretary of the applicant; and

(d) the record in situations requiring trust and candour of each

such person; and

(e) whether the company, or a person referred to in paragraph (c)

or (d), has been convicted of an offence against this Act or

the regulations; and

(f) whether a civil penalty order has been made against:

(i) the company; or

(ii) a person referred to in paragraph (c) or (d).

(4) This section does not affect the operation of Part VIIC of the

Crimes Act 1914 (which includes provisions that, in certain

circumstances, relieve persons from the requirement to disclose

spent convictions and require persons aware of such convictions to

disregard them).

92E Criteria for deciding whether to allocate a licence

(1) In deciding whether to allocate a temporary community

broadcasting licence to an applicant or to one of a group of

applicants, the ACMA may have regard to:

(a) the undesirability of one person being in a position to

exercise control of more than one community broadcasting

licence that is a broadcasting services bands licence in the

same licence area; and

(b) the undesirability of the Commonwealth, a State or a

Territory or a political party being in a position to exercise

control of a temporary community broadcasting licence.

(2) In deciding whether to allocate a temporary community

broadcasting licence to an applicant or to one of a group of

applicants, the ACMA 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

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(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.

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

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(c) such other conditions as are imposed under section 92J.

92J ACMA may vary conditions or periods, or impose new

conditions

(1) The ACMA may, by notice in writing given to a temporary

community broadcasting licensee:

(a) vary or revoke a condition of the licence (including a timing

condition); or

(b) impose an additional condition on the licence; or

(c) vary the licence period.

(2) Without limiting subsection (1), the ACMA may impose an

additional condition on a licence:

(a) requiring the licensee to comply with a code of practice that

is applicable to the licensee; or

(b) designed to ensure that a breach of a condition by the

licensee does not recur.

(3) An additional condition of a licence must be relevant to community

broadcasting services.

(4) If the ACMA proposes to vary or revoke a condition, impose an

additional condition or vary the licence period, the ACMA is to

give to the licensee:

(a) written notice of its intention; and

(b) a reasonable opportunity to make representations to the

ACMA in relation to the proposed action.

(5) This section does not allow the ACMA:

(a) to vary or revoke a condition set out in Part 5 of Schedule 2;

or

(b) to vary or revoke a timing condition so that there are no times

in which the licence allows community broadcasting services

to be provided; or

(c) to vary the licence period so that the period is longer than

12 months.

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(6) If the ACMA varies or revokes a condition (other than a timing

condition), imposes an additional condition or varies the licence

period, the ACMA is to publish the fact of the variation, revocation

or additional condition in the Gazette.

(7) Action taken under subsection (1) must not be inconsistent with:

(a) determinations and clarifications under section 19; or

(b) conditions set out in Part 5 (other than paragraph 9(1)(h)) of

Schedule 2.

92K Duration of temporary community broadcasting licences

Subject to section 92L and Part 10, a temporary community

broadcasting licence remains in force for the licence period.

92L Surrender of temporary community broadcasting licences

A temporary community broadcasting licensee may, by notice in

writing given to the ACMA, surrender the licence.

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Division 1 Allocation of subscription television broadcasting licences

Section 95

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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.

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(5) The ACMA must not allocate a subscription television

broadcasting licence under this section if the Australian

Competition and Consumer Commission has reported, within

30 days after being requested for a report under section 97, that, in

the opinion of the Australian Competition and Consumer

Commission, the allocation of the licence to the applicant:

(a) would constitute a contravention of section 50 of the

Competition and Consumer Act 2010 if the allocation of the

licence were the acquisition by the applicant of an asset of a

body corporate; and

(b) would not be authorised under section 88 of that Act if the

applicant had applied for such an authorisation.

(6) If a licence is allocated under this section, the ACMA must publish

in the Gazette the name of the successful applicant.

97 Requests to Australian Competition and Consumer Commission

(1) Before a subscription television broadcasting licence is allocated to

a person under section 96, the ACMA must request the Australian

Competition and Consumer Commission to provide a report under

this section.

(2) The report is to advise whether, in the opinion of the Australian

Competition and Consumer Commission, the allocation of the

licence to the applicant:

(a) would constitute a contravention of section 50 of the

Competition and Consumer Act 2010 if the allocation of the

licence were the acquisition by the applicant of an asset of a

body corporate; and

(b) would not be authorised under section 88 of that Act if the

applicant had applied for such an authorisation.

(3) For the purposes of the consideration of a request by the Australian

Competition and Consumer Commission, section 155 of the

Competition and Consumer Act 2010 applies as if the allocation of

a licence under this Part were a matter referred to in subsection (1)

of that section.

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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

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Section 98D

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circumstances, relieve persons from the requirement to disclose

spent convictions and require persons aware of such convictions to

disregard them).

98D Compensation

(1) In this section:

acquisition of property has the same meaning as in

paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

(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.

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Division 2 Conditions of subscription television broadcasting licence

Section 99

218 Broadcasting Services Act 1992

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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.

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Section 100

Broadcasting Services Act 1992 219

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100 Matters to which conditions may relate

(1) Conditions of a subscription television broadcasting licence must

be relevant to subscription television broadcasting services.

(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.

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Section 100

220 Broadcasting Services Act 1992

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(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.

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Eligible drama expenditure Division 2A

Section 103A

Broadcasting Services Act 1992 221

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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.

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Section 103B

222 Broadcasting Services Act 1992

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• Licensees and channel providers are required to lodge annual

returns about their program expenditure.

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.

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

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Section 103B

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(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

(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

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Section 103B

224 Broadcasting Services Act 1992

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(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:

(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

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Section 103C

Broadcasting Services Act 1992 225

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(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.

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).

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

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Section 103D

226 Broadcasting Services Act 1992

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(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.

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

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Section 103F

Broadcasting Services Act 1992 227

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(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.

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.

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Section 103H

228 Broadcasting Services Act 1992

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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.

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:

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Section 103JA

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(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.

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:

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(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

(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

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Section 103K

Broadcasting Services Act 1992 231

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(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

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).

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Section 103L

232 Broadcasting Services Act 1992

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(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.

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.

Note: For specification by class, see subsection 13(3) of the Legislation Act

2003.

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Section 103M

Broadcasting Services Act 1992 233

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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

(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

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Section 103N

234 Broadcasting Services Act 1992

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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:

(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

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(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.

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).

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Section 103NA

236 Broadcasting Services Act 1992

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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.

(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

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(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;

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.

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Section 103Q

238 Broadcasting Services Act 1992

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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

(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

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(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.

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.

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Section 103Q

240 Broadcasting Services Act 1992

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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:

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

Subscribers of first licensee 100

Subscribers of Subscribers of first licensee additional licensees

Number of subscribers to the Number of subscribers to the subscription TV drama service on subscription TV drama service on

the first day of the month the last day of the month

2

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(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;

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:

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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.

(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;

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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.

(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.

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Section 103S

244 Broadcasting Services Act 1992

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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

subsection (2) in relation to the subscription TV drama

service; and

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(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

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(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

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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.

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.

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Section 103U

248 Broadcasting Services Act 1992

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Subdivision E—Part-channel provider supplies package of

programs

103U 10% minimum eligible drama expenditure—part-channel

provider supplies package of programs

(1) 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;

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

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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

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.

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Section 103V

250 Broadcasting Services Act 1992

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(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.

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.

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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:

(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;

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Section 103W

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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

(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.

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Eligible drama expenditure Division 2A

Section 103W

Broadcasting Services Act 1992 253

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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:

Subscribers of first licensee 100

Subscribers of Subscribers of first licensee additional licensees

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Section 103W

254 Broadcasting Services Act 1992

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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.

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.

Number of subscribers to the Number of subscribers to the subscription TV drama service on subscription TV drama service on

the first day of the month the last day of the month

2

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Section 103X

Broadcasting Services Act 1992 255

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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

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

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Division 2A Eligible drama expenditure

Section 103XA

256 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

(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

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Section 103Y

Broadcasting Services Act 1992 257

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(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

(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;

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Section 103Y

258 Broadcasting Services Act 1992

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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:

(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.

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Eligible drama expenditure Division 2A

Section 103Z

Broadcasting Services Act 1992 259

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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

(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;

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Section 103ZAA

260 Broadcasting Services Act 1992

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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.

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

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Section 103ZA

Broadcasting Services Act 1992 261

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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 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.

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Section 103ZB

262 Broadcasting Services Act 1992

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(2) A person commits 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

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.

(2) A person commits 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:

(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.

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Section 103ZC

Broadcasting Services Act 1992 263

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(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

(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.

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Section 103ZG

264 Broadcasting Services Act 1992

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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

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.

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Subscription television broadcasting services Part 7

Miscellaneous Division 6

Section 113

Broadcasting Services Act 1992 265

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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 give notice, by legislative instrument, specifying

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 give notice, by legislative instrument, amending

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, by legislative

instrument registered under the Legislation Act 2003 before that

time, declares that the event continues to be specified in the notice

after that time.

(1AB) The Minister may make 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.

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Division 6 Miscellaneous

Section 116

266 Broadcasting Services Act 1992

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(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, by

legislative instrument registered under the Legislation Act 2003

before that time, declares that the event continues to be specified in

the notice after that time.

(2) The Minister may give notice, by legislative instrument, amending

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.

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;

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Section 116A

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(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.

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.

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Part 8 Subscription broadcasting and narrowcasting class licences

Section 117

268 Broadcasting Services Act 1992

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Part 8—Subscription broadcasting and

narrowcasting class licences

117 Determination of class licences

The ACMA may, by legislative instrument, 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.

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Section 120

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(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 legislative instrument:

(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.

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Part 8A Restrictions on subscription television broadcasting services in regional areas

etc.

Section 121A

270 Broadcasting Services Act 1992

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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.

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Section 121C

Broadcasting Services Act 1992 271

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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

(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:

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(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

(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;

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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

may be, does not engage in conduct to which subsection (1)

applies.

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Part 8B International broadcasting licences

Division 1 Introduction

Section 121F

274 Broadcasting Services Act 1992

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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.

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• 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.

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Division 2 Allocation of international broadcasting licences

Section 121FA

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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;

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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.

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Section 121FC

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(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:

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Section 121FD

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(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 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

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Section 121FD

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(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;

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:

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(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.

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.

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Division 3 Obligations of international broadcasting licensees

Section 121FF

282 Broadcasting Services Act 1992

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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.

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Remedies Division 4

Section 121FG

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Division 4—Remedies

121FG Prohibition on providing an international broadcasting

service without a licence

(1) A person commits 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) 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) 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.

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Section 121FHA

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121FHA Breach of remedial direction—offence

(1) A person commits an offence if:

(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 commits 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.

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Penalty: 2,000 penalty units.

(2) In this section:

engage in conduct means:

(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

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Division 4 Remedies

Section 121FJC

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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

(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:

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(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.

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

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Section 121FL

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(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:

(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

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Section 121FL

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subsection does not limit the material to which the Minister for

Foreign Affairs may have regard.

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Part 8B International broadcasting licences

Division 4A Nominated broadcaster declarations

Section 121FLA

290 Broadcasting Services Act 1992

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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:

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(i) the content provider holds an international broadcasting

licence that authorises the provision of the international

broadcasting service; or

(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

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Section 121FLD

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relates to a different transmitter licence or proposed transmitter

licence.

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

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Nominated broadcaster declarations Division 4A

Section 121FLE

Broadcasting Services Act 1992 293

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(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.

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 commits 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:

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Section 121FLG

294 Broadcasting Services Act 1992

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engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

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.

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Section 121FLG

Broadcasting Services Act 1992 295

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(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.

(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

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Section 121FLH

296 Broadcasting Services Act 1992

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(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

(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.

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Section 121FLJ

Broadcasting Services Act 1992 297

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(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

(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.

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Part 8B International broadcasting licences

Division 5 ACMA to assist the Minister for Foreign Affairs

Section 121FM

298 Broadcasting Services Act 1992

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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.

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Miscellaneous Division 6

Section 121FP

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Division 6—Miscellaneous

121FP International broadcasting guidelines

(1) The ACMA must, by legislative instrument, formulate guidelines

relating to international broadcasting services.

(2) To avoid doubt, international broadcasting guidelines may deal

with matters other than Australia’s national interest.

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;

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Section 121FS

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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.

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Section 121G

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Part 9—Content rules, program standards and

codes of practice

121G Australian content—transmission quota

Programs transmitted on 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 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 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

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Programs transmitted otherwise than on primary commercial

television broadcasting service

(2) A commercial television broadcasting licensee must ensure that,

for each calendar year beginning on or after 1 January 2015, the

total number of hours of Australian programs that were transmitted

by the licensee:

(a) during targeted viewing hours in the year; and

(b) otherwise than on the 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 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.

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;

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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.

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).

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(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.

(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.

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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 4 of Chapter 3 (sunsetting) of the

Legislation Act 2003 do not apply to the direction (see regulations

made for the purposes of paragraphs 44(2)(b) and 54(2)(b) 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.

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.

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(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 4 of Chapter 3 (sunsetting) of the

Legislation Act 2003 do not apply to the direction (see regulations

made for the purposes of paragraphs 44(2)(b) and 54(2)(b) 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;

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).

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(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

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

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(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

(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

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(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:

(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:

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(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

(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

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(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

broadcasting service provided by a commercial radio broadcasting

licensee.

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Section 123B

312 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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

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

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(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

(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.

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Section 126

314 Broadcasting Services Act 1992

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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;

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.

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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.

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Section 130A

316 Broadcasting Services Act 1992

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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 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.

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Broadcasting Services Act 1992 317

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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.

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.

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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.

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 1: For compliance by holders of commercial radio broadcasting licences,

see clause 8 of Schedule 2.

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Section 130AB

Broadcasting Services Act 1992 319

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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.

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;

(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.

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Section 130B

320 Broadcasting Services Act 1992

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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.

Offence

(2) A person commits an offence if:

(a) the person supplies equipment; and

(b) the equipment is domestic reception equipment; and

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(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).

(4) Subsection (3) is a civil penalty provision.

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Section 130BA

322 Broadcasting Services Act 1992

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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 Legislation 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

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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.

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; and

(d) the equipment does not comply with a standard

determined under subsection (1).

Penalty: 1,500 penalty units.

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Section 130BA

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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; 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.

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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 Legislation 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:

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(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

(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.

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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 Legislation Act

2003.

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Section 130BB

328 Broadcasting Services Act 1992

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Definitions

(8) In this section:

community television broadcasting service means a community

broadcasting service that provides television programs.

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.

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Simplified outline Division 1

Section 130C

Broadcasting Services Act 1992 329

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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.

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Division 2 Interpretation

Section 130D

330 Broadcasting Services Act 1992

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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;

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Section 130F

Broadcasting Services Act 1992 331

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(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.

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Division 2 Interpretation

Section 130G

332 Broadcasting Services Act 1992

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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).

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Section 130H

Broadcasting Services Act 1992 333

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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.

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Part 9B Industry codes and industry standards

Division 3 General principles relating to industry codes and industry standards

Section 130J

334 Broadcasting Services Act 1992

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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.

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General principles relating to industry codes and industry standards Division 3

Section 130L

Broadcasting Services Act 1992 335

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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

(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.

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Division 4 Industry codes

Section 130M

336 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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Industry codes Division 4

Section 130N

Broadcasting Services Act 1992 337

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 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:

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Division 4 Industry codes

Section 130P

338 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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 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.

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Section 130Q

Broadcasting Services Act 1992 339

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

Note: Paragraphs 130M(1)(e) and (f) deal with submissions about draft

codes.

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Division 5 Industry standards

Section 130R

340 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Section 130S

Broadcasting Services Act 1992 341

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(4) The Minister may give the ACMA a written direction as to the

exercise of its powers under this section.

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.

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Division 5 Industry standards

Section 130T

342 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

130T ACMA may determine industry standards—total 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 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.

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Section 130U

Broadcasting Services Act 1992 343

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

(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.

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Section 130U

344 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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).

(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.

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Industry standards Division 5

Section 130V

Broadcasting Services Act 1992 345

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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

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Section 130Y

346 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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Register of industry codes and industry standards Division 6

Section 130ZA

Broadcasting Services Act 1992 347

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Section 130ZBA

348 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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:

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(a) the South Eastern Australia TV3 licence area; or

(b) the Northern 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 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;

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.

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Section 130ZB

350 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

(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.

(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.

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Section 130ZB

Broadcasting Services Act 1992 351

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

(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.

(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;

the conditional access system must enable the person to receive

those commercial television broadcasting services.

(15B) The 13th objective is that, if:

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Section 130ZB

352 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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:

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).

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.

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Section 130ZBB

Broadcasting Services Act 1992 353

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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;

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).

(4) The second objective is that the scheme should:

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Section 130ZBB

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(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.

(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 are to receive adequate reception of all the

applicable terrestrial digital commercial television broadcasting

services.

(9) The sixth objective is that the scheme must:

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(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.

(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

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(ii) the applicant to incur any expenses (other than the

expense of filling in the application and sending it to the

scheme administrator).

(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.

(20) The 15th 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;

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:

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(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:

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.

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.

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

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(c) the body or association gives a copy of the new scheme to the

ACMA; and

(d) any of the following subparagraphs applies:

(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.

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Section 130ZCAA

Broadcasting Services Act 1992 359

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130ZCAA ACMA may invite representative body or association to

develop a revised conditional access scheme

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) 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.

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Section 130ZCAB

360 Broadcasting Services Act 1992

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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

(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:

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(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

(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

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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;

(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.

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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

(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

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Section 130ZD

364 Broadcasting Services Act 1992

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(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:

(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.

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(3) The Register is to be made available for inspection on the ACMA’s

website.

(4) The Register is not a legislative instrument.

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;

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Section 130ZF

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(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

(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.

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(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.

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.

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Section 130ZFA

368 Broadcasting Services Act 1992

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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.

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.

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Section 130ZG

Broadcasting Services Act 1992 369

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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

(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

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Section 130ZH

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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.

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;

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the ACMA must, by legislative instrument, declare that the

relevant area is a declared service-deficient area for the purposes

of this Part.

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.

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:

number includes zero.

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.

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Section 130ZH

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Note: For applicable terrestrial digital commercial television broadcasting

services, see section 130ZG.

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Introduction Division 1

Section 130ZJ

Broadcasting Services Act 1992 373

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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.

channel means a continuous stream of programs.

channel provider has the meaning given by section 130ZKA.

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Division 1 Introduction

Section 130ZK

374 Broadcasting Services Act 1992

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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.

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.

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.

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Section 130ZK

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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.

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.

part-channel provider has the meaning given by section 130ZKB.

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.

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Section 130ZK

376 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

sports program means:

(a) a sports news bulletin; or

(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.

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Section 130ZKA

Broadcasting Services Act 1992 377

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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.

130ZKA Definition of channel provider

For the purposes of this Part, a channel provider, in relation to a

subscription television service provided by a subscription

television 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;

where, apart from any breaks for the purposes of the transmission

of incidental matter, the channel is televised by the licensee on the

service.

130ZKB Definition of part-channel provider

For the purposes of this Part, a part-channel provider, in relation

to a subscription television service provided by a subscription

television 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;

where:

(c) the package constitutes a significant proportion of the

program material that is televised by the licensee on the

service; and

(d) there is no channel provider in relation to the service.

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Section 130ZKC

378 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

130ZKC Supply of channel or package

For the purposes of this Part, a person is taken to have supplied a

channel or a package to a subscription television licensee if the

channel or package is supplied by the person to the licensee:

(a) directly; or

(b) indirectly through one or more interposed persons.

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.

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Section 130ZN

Broadcasting Services Act 1992 379

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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.

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

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Section 130ZQ

380 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

(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.

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Section 130ZR

Broadcasting Services Act 1992 381

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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

(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 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;

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

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Section 130ZR

382 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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 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:

(c) a SDTV multi-channelled national television broadcasting

service provided by the national broadcaster otherwise than

with the use of a satellite; or

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Section 130ZR

Broadcasting Services Act 1992 383

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(d) a HDTV multi-channelled national television broadcasting

service provided by the national broadcaster otherwise than

with the use of a satellite;

unless 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:

(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.

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Section 130ZS

384 Broadcasting Services Act 1992

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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:

(i) a SDTV multi-channelled commercial television

broadcasting service; or

(ii) a HDTV multi-channelled commercial television

broadcasting service;

in the licence area; and

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Broadcasting Services Act 1992 385

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(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:

(i) a SDTV multi-channelled national television

broadcasting service; or

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Section 130ZUA

386 Broadcasting Services Act 1992

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(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).

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).

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Broadcasting Services Act 1992 387

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(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

(b) be in a form approved, in writing, by the ACMA; and

(c) be made in the period:

(i) commencing on 1 July in the financial year immediately

before the eligible period specified in the application;

and

(ii) ending on the first 31 March in 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.

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Section 130ZUA

388 Broadcasting Services Act 1992

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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

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;

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Section 130ZUA

Broadcasting Services Act 1992 389

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(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

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:

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Section 130ZUA

390 Broadcasting Services Act 1992

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(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.

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.

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Section 130ZUAA

Broadcasting Services Act 1992 391

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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

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:

Total hours of captioned programs transmitted during the financial year

100 Total hours of programs transmitted

during the financial year

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Section 130ZUAA

392 Broadcasting Services Act 1992

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(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 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

Total hours of captioned programs transmitted during the financial year

100 Total hours of programs transmitted

during the financial year

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Section 130ZUB

Broadcasting Services Act 1992 393

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(b) on the service.

Standard captioning rule does not apply

(4) Subsection 130ZR(1) does not apply to the service for the financial

year.

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;

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Section 130ZUB

394 Broadcasting Services Act 1992

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then the breach is to be disregarded in determining whether the

broadcaster has complied with the provision.

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Section 130ZV

Broadcasting Services Act 1992 395

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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 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 captioned hours means the total number of hours of

television programs transmitted on the service during the financial

year for which a captioning service was provided.

total program hours 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) for the financial year beginning on 1 July 2014—the

applicable percentage set out in the following table; and

(b) for a later financial year—the lesser of:

(i) the annual captioning target for the service for the

previous financial year plus an additional 5%; and

(ii) 100%.

Note: For example, the annual captioning target for the financial year beginning on 1 July 2015 for a category A subscription television movie service is 80% (75% plus an additional 5%).

Total captioned hours 100

Total program hours 

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Section 130ZV

396 Broadcasting Services Act 1992

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Annual captioning target for financial year beginning on 1 July 2014

Item Service Percentage

1 Category A subscription television

movie service

75%

2 Category B subscription television

movie service

55%

3 Category C subscription television

movie service

45%

4 Category A subscription television

general entertainment service

55%

5 Category B subscription television

general entertainment service

45%

6 Category C subscription television

general entertainment service

25%

7 Subscription television news service 15%

8 Subscription television sports service 15%

9 Subscription television music service 5%

Modified formula for subscription television sports services

(3) If, in relation to a financial year:

(a) a subscription television licensee provides a subscription

television sports service; and

(b) the percentage worked out using the formula in

subsection (1) for the service is at least two-thirds of the

annual captioning target;

the licensee is taken to have satisfied the requirement in

subsection (1) for the service for the financial year if the

percentage worked out using the following formula is not less than

the annual captioning target:

where:

Total captioned hours on relevant sports services 100

Total program hours on relevant sports services 

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relevant sports services means all subscription television sports

services provided by the licensee that televise channels supplied by

the same channel provider, other than:

(a) services to which subsection 130ZV(1) does not apply during

the financial year because of subsection 130ZX(7); and

(b) services to which an exemption order or target reduction

order under section 130ZY applies for the financial year.

total captioned hours on relevant sports services means the total

number of hours of television programs transmitted on relevant

sports services during the financial year for which a captioning

service was provided.

total program hours on relevant sports services means the total

number of hours of television programs transmitted on relevant

sports services during the financial year.

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

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.

Exclusion for new subscription television service

(6) This section does not apply to a subscription television service

until the financial year beginning on the first 1 July that is at least 1

year after the service commenced, if the service predominantly

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consists of programs not transmitted in Australia before that

commencement.

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 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 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:

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(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.

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(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

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

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(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.

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

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(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:

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);

Total number of the services 11 Exemption percentage

covered by paragraph (1)(a)

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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.

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:

Total number of the services 43 Exemption percentage

covered by paragraph (3)(a)

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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

(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:

Total number of the services 3 Exemption percentage

covered by paragraph (5)(a)

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Total number of the services 7 Exemption percentage

covered by paragraph (7)(a)

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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:

(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.

Total number of the services 6 Exemption percentage

covered by paragraph (9)(a)

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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

(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:

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(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

(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 the period:

(i) commencing on 1 July in the financial year immediately

before the eligible period specified in the application;

and

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(ii) ending on the first 31 March in 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;

(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;

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(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

(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.

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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.

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.

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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 and narrowcasting services

(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 captioned hours means the total number of hours of

television programs transmitted on the service during the financial

year for which a captioning service was provided.

total program hours means the total number of hours of television

programs transmitted on the service during the financial year.

Total captioned hours 100

Total program hours 

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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

(1) 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).

(2) Subsection (1) does not apply if:

(a) the program when previously transmitted was supplied by a

channel provider or part-channel provider; and

(b) the program when transmitted as mentioned in

paragraph (1)(a) was not supplied by that channel provider or

part-channel provider.

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:

(a) a subscription television licensee transmits a television

program on a subscription television service (the first

service); and

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(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.

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Section 130ZZA

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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.

(2A) In determining a standard under subsection (1), the ACMA must

consider the differences (including time constraints for live

content) between providing captioning services for:

(a) live television programs and pre-recorded television

programs; and

(b) wholly live or wholly pre-recorded television programs and

television programs that include both live and pre-recorded

program material.

(2B) Subsection (2A) does not authorise the ACMA to determine that a

lower quality (within the meaning of subsection (2)) of captioning

service is acceptable for a kind of program or program material.

(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.

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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).

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).

(7A) A failure by a licensee or broadcaster to comply with a standard

determined under subsection (1) is to be disregarded to the extent

to which the failure is attributable to significant difficulties of a

technical or engineering nature for the licensee or broadcaster,

which it could not reasonably have foreseen.

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.

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Part 9D Captioning

Division 5 Emergency warnings

Section 130ZZB

416 Broadcasting Services Act 1992

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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

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Emergency warnings Division 5

Section 130ZZB

Broadcasting Services Act 1992 417

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(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.

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Division 6 Reports and record-keeping

Section 130ZZC

418 Broadcasting Services Act 1992

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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.

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Reports and record-keeping Division 6

Section 130ZZD

Broadcasting Services Act 1992 419

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(6) A report under subsection (5) must:

(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

(1) This section applies to each of the following (a responsible

person):

(a) a commercial television broadcasting licensee;

(b) a national broadcaster;

(c) a subscription television licensee that is a body corporate.

Note: For compliance, see clause 7 of Schedule 2 (for commercial television

broadcasting licensees), clause 10 of Schedule 2 (for subscription

television broadcasting licensees) and clause 11 of Schedule 2 (for

subscription television narrowcasting licensees).

(2) A responsible person must, in a form approved in writing by the

ACMA, make:

(a) written records sufficient to enable the responsible person’s

compliance with Division 2 or 3 to be readily ascertained;

and

(b) audio-visual records sufficient to enable the responsible

person’s compliance with Divisions 4 and 5 to be readily

ascertained.

(3) A written record must be retained in the responsible person’s

custody for at least 90 days after the responsible person’s report

under section 130ZZC in relation to the financial year to which the

record relates is given to the ACMA.

(4) An audio-visual record must be retained in the responsible person’s

custody:

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Division 6 Reports and record-keeping

Section 130ZZD

420 Broadcasting Services Act 1992

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(a) for at least 30 days after the day the program to which the

record relates was broadcast; or

(b) if, before the end of those 30 days, the responsible person

becomes aware that a complaint has been made under Part 11

about captioning of the program—for at least 90 days after

the day the program was broadcast.

(5) A responsible person must, without charge, make available to the

ACMA on request any records retained by the responsible person

under this section (whether or not the minimum period for

retaining the records has passed).

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Review of this Part etc. Division 7

Section 130ZZE

Broadcasting Services Act 1992 421

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Division 7—Review of this Part etc.

130ZZE Review of this Part etc.

(1) Before 31 December 2016, 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 2017.

(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.

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Part 10 Remedies for breaches of licensing provisions

Division 1 Offences for providing unlicensed services

Section 131

422 Broadcasting Services Act 1992

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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.

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Section 135

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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 commits 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.

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Part 10 Remedies for breaches of licensing provisions

Division 1A Civil penalty provisions relating to unlicensed services

Section 136A

424 Broadcasting Services Act 1992

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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.

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Section 136E

Broadcasting Services Act 1992 425

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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.

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Part 10 Remedies for breaches of licensing provisions

Division 2 Action by ACMA where a person provides a service without a licence

Section 137

426 Broadcasting Services Act 1992

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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.

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Section 138A

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(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.

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Division 3 Action in relation to breaches by licensees

Section 139

428 Broadcasting Services Act 1992

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Division 3—Action in relation to breaches by licensees

139 Offence for breach of conditions of licences and class licences

(1) 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 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 commits 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.

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Section 139

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Penalty: 1,000 penalty units.

(3) 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 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 commits 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 commits an offence if:

(a) the person is a temporary community broadcasting licensee;

and

(b) the person engages in conduct; and

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Section 140

430 Broadcasting Services Act 1992

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(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.

(6) A person commits 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 commits 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

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(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.

(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

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(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.

(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;

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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;

(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

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Section 142

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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

(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.

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(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.

(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.

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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

(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

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(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.

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Section 144

438 Broadcasting Services Act 1992

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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.

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Broadcasting Services Act 1992 439

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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, by legislative instrument, designate 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.

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440 Broadcasting Services Act 1992

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• 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.

• 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

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(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.

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.

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Section 146C

442 Broadcasting Services Act 1992

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146C Designated events and designated series of events

(1) The Minister may, by legislative instrument, 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 Legislation Act

2003.

(2) The Minister may, by legislative instrument, 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 Legislation 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.

(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.

146CA When event or series is eligible for delayed televising in the

Central-Western time zones

(1) The Minister may, by legislative instrument, determine that a

specified designated event is eligible for delayed televising in the

Central-Western time zones.

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Note: For specification by class, see subsection 13(3) of the Legislation Act

2003.

(2) The Minister may, by legislative instrument, 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 Legislation 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).

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

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(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:

(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;

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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.

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Section 146E

446 Broadcasting Services Act 1992

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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.

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Broadcasting Services Act 1992 447

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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.

(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

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(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

(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.

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Section 146G

Broadcasting Services Act 1992 449

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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:

(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:

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(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.

(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);

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Broadcasting Services Act 1992 451

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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

(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.

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Section 146KA

452 Broadcasting Services Act 1992

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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.

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

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(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

(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

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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

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.

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Section 146L

Broadcasting Services Act 1992 455

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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

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Section 146M

456 Broadcasting Services Act 1992

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live events would amount to an insubstantial proportion of the event

or series 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 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.

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Section 146N

Broadcasting Services Act 1992 457

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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.

(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.

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Section 146Q

458 Broadcasting Services Act 1992

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(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

(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:

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(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

(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

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Section 146R

460 Broadcasting Services Act 1992

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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.

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.

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Complaints to the ACMA Part 11

Complaints relating to action under licences and class licences Division 1

Section 147

Broadcasting Services Act 1992 461

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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.

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Division 1 Complaints relating to action under licences and class licences

Section 149

462 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

149 Investigation of complaints by the ACMA

The ACMA may investigate the complaint if the ACMA thinks

that it is desirable to do so.

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by the ABC or SBS Division 2

Section 150

Broadcasting Services Act 1992 463

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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.

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Division 2 Complaints relating to national broadcasting services or datacasting services

provided by the ABC or SBS

Section 151

464 Broadcasting Services Act 1992

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151 Investigation of complaints relating to the ABC or SBS by the

ACMA

The ACMA may investigate the complaint if the ACMA thinks

that it is desirable to do so.

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.

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

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.

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Information gathering by the ACMA and the Commissioner Part 13

Introduction Division 1

Section 168

Broadcasting Services Act 1992 465

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Part 13—Information gathering by the ACMA and

the Commissioner

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.

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Division 1 Introduction

Section 169A

466 Broadcasting Services Act 1992

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169A Investigation by the Commissioner

A reference in this Part to an investigation by the Commissioner is

a reference to an investigation by the Commissioner under:

(a) section 19 of the Enhancing Online Safety Act 2015; or

(b) clause 27 of Schedule 5 to this Act; or

(c) clause 44 of Schedule 7 to this Act.

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Investigations Division 2

Section 170

Broadcasting Services Act 1992 467

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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.

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Division 2 Investigations

Section 173

468 Broadcasting Services Act 1992

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173 Notice requiring appearance for examination

(1) For the purposes of an investigation by the ACMA, 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.

(2) For the purposes of an investigation by the Commissioner, the

Commissioner may give a written notice to a person summoning

the person:

(a) to attend before:

(i) the Commissioner; or

(ii) a delegate of the Commissioner named in the notice;

to produce documents or to answer questions; or

(b) to provide documents or other information to the

Commissioner;

relevant to the subject matter of the investigation.

174 Examination on oath or affirmation

Investigation by the ACMA

(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.

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Investigations Division 2

Section 175

Broadcasting Services Act 1992 469

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(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.

Investigation by the Commissioner

(4) If a person is summoned to attend before the Commissioner or a

delegate of the Commissioner, the Commissioner or delegate may

examine the 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.

(5) 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.

(6) The Commissioner or 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 Commissioner 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

Investigation by the ACMA

(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.

(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.

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Section 177

470 Broadcasting Services Act 1992

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Investigation by the Commissioner

(3) If a person is examined by the Commissioner or a delegate of the

Commissioner, a record must be made of the examination and the

person is entitled to be given a written copy of the record.

(4) 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

(1) 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 by the ACMA; and

(b) to permit that member to make copies of any such

documents.

(2) The Commissioner may, by written notice given to a person,

require the person:

(a) to make available for inspection by:

(i) the Commissioner; or

(ii) a delegate of the Commissioner;

any documents in the possession of the person that may

contain information relevant to the subject matter of an

investigation by the Commissioner; and

(b) to permit the Commissioner or the delegate, as the case may

be, 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.

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Investigations Division 2

Section 179

Broadcasting Services Act 1992 471

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(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

(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.

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Division 3 Hearings

Section 182

472 Broadcasting Services Act 1992

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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.

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Hearings Division 3

Section 186

Broadcasting Services Act 1992 473

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(2) If a person who is directed to participate in a conference in relation

to a hearing fails, without reasonable excuse, to attend the

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,

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Section 190

474 Broadcasting Services Act 1992

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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.

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

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otherwise directs, to be taken to have taken place before the

reconstituted panel.

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

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(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.

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.

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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 by the

ACMA or a hearing, has the same protection as a witness in a

proceeding in the High Court.

(4) A person who gives evidence or produces documents at an

investigation by the Commissioner 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

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(b) fail to appear and report from day to day unless excused or

released from further attendance.

Penalty: Imprisonment for one year.

(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.

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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.

(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

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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.

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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

Refusal to allocate an

additional licence

Section 38A The licensee

Refusal to allocate an

additional licence

Section 38B 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

That a person is not a

suitable applicant or

licensee

(Commercial)

Subsection 41(2) The person

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Column 1

Decision

Column 2

Provision

Column 3

Person who may

apply

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

Refusal to approve

transaction or

determination of

period of approval

Section 61AJ or

61AMC

The applicant for

approval

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Column 1

Decision

Column 2

Provision

Column 3

Person who may

apply

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

That a person is not a

suitable applicant or

licensee (Temporary

community)

Subsection 92D(2) The person

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Column 1

Decision

Column 2

Provision

Column 3

Person who may

apply

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

Grant of permission Subsection 121E(1) A commercial

television

broadcasting licensee

any part of whose

licence area is

included in the

regional area

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Column 1

Decision

Column 2

Provision

Column 3

Person who may

apply

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

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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

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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.

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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.

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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

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(c) within 6 months after 30 June in each year, give the ACMA:

(i) a balance-sheet and a 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.

(4A) For the purposes of the application of subparagraph (1)(c)(i) to a

licensee:

(a) a balance-sheet must be an audited balance-sheet; and

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(b) a profit and loss account must be an audited profit and loss

account;

unless the licensee is included in a class of licensees specified by

the ACMA in a legislative instrument.

(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.

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.

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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.

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

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(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:

(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.

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(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.

(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.

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Section 205D

Broadcasting Services Act 1992 495

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

(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:

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Part 14A Accounts and payment of licence fees

Section 205D

496 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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.

Licence fee component of judgment debt

Interest on judgment debt Judgment debt

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Civil penalties Part 14B

Ancillary contravention of civil penalty provision Division 1

Section 205E

Broadcasting Services Act 1992 497

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Part 14B Civil penalties

Division 2 Civil penalty orders

Section 205EA

498 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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Civil penalties Part 14B

Civil penalty orders Division 2

Section 205F

Broadcasting Services Act 1992 499

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

had been convicted of an offence against the provision of this Act

that corresponds to the civil penalty provision.

(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.

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Part 14B Civil penalties

Division 2 Civil penalty orders

Section 205G

500 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

205G Who may apply for a civil penalty order

(1) Only the ACMA may apply for a civil penalty order.

(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.

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Civil penalties Part 14B

Civil penalty orders Division 2

Section 205N

Broadcasting Services Act 1992 501

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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

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Part 14B Civil penalties

Division 2 Civil penalty orders

Section 205PAA

502 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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:

(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.

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Injunctions Part 14C

Section 205PA

Broadcasting Services Act 1992 503

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Part 14C Injunctions

Section 205R

504 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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.

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Injunctions Part 14C

Section 205U

Broadcasting Services Act 1992 505

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Part 14D Enforceable undertakings

Section 205V

506 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Enforceable undertakings Part 14D

Section 205X

Broadcasting Services Act 1992 507

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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.

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Part 14E Infringement notices

Section 205XAA

508 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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Infringement notices Part 14E

Section 205Z

Broadcasting Services Act 1992 509

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

infringement notice provision unless the officer, or another

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.

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Part 14E Infringement notices

Section 205ZB

510 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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:

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Infringement notices Part 14E

Section 205ZE

Broadcasting Services Act 1992 511

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(a) require an infringement notice to be given in relation to an

alleged contravention of a designated infringement notice

provision; or

(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.

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Part 15 Miscellaneous

Section 206

512 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Miscellaneous Part 15

Section 211AA

Broadcasting Services Act 1992 513

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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).

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.

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Part 15 Miscellaneous

Section 211A

514 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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).

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

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Miscellaneous Part 15

Section 211A

Broadcasting Services Act 1992 515

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Part 15 Miscellaneous

Section 212

516 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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(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).

(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

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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

(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

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(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

(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.

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(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.

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 legislative instrument, 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 legislative instrument, determine that a

specified person who provides a re-transmission of programs for

the sole or principal purpose of obtaining or improving reception in

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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 legislative instrument, 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 legislative instrument, 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.

Determination has effect

(5) A determination under this section has effect accordingly.

Note: For specification by class, see subsection 13(3) of the Legislation 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.

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(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:

(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 section 17 of the Legislation Act

2003.

(5) The ACMA must ensure that guidelines relating to the powers

conferred on the ACMA by:

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(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.

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.

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.

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(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.

(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.

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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, 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.

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(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.

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Clause 2

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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):

(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

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Clause 2

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operations of the licensee in transmitting 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.

(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:

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(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.

(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:

(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.

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Clause 3

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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;

in accordance with the directions, instructions or wishes

of, or in concert with, the person or of the person and an

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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

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Clause 4

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(b) in the case of a licensee other than a datacasting transmitter

licensee—controls the selection or provision of any of the

programs to be broadcast by the licensee; or

(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

(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

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(b) a corporation formed under the law of a State or Territory to

carry on the business of banking within Australia; or

(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

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(c) a company that publishes a newspaper; or

(d) a company that is in a position to exercise control of such a

company.

(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.

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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

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Part 4 Tracing of ownership

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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.

Company Interest 1 Company Interest 2

Co. B

10%30%

Co. APerson

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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.

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Part 1 Interpretation

Clause 1

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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;

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(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

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).

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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.

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

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(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.

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

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(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.

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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

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(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.

(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

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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.

(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.

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(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.

(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

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(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.

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Part 3 Commercial television broadcasting licences

Division 1 General

Clause 7

548 Broadcasting Services Act 1992

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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

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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

(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

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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.

(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;

(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

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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

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(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.

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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 primary commercial television

broadcasting services

Conditions about the provision of 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 primary services), where each of

the services:

(a) is provided by a terrestrial licensee in a related terrestrial

licence area; and

(b) is a primary commercial television broadcasting service; and

(c) is distinct from each of the other services;

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the section 38C licensee will provide at least 3 commercial

television broadcasting services, where:

(d) the program content of each of the services is the same, or

substantially the same, as the program content of a related

terrestrial 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 primary services), where each of the

services:

(a) is provided by a terrestrial licensee in a related terrestrial

licence area; and

(b) is a 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 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

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 primary service), where:

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(i) the service is provided by a terrestrial licensee in a

related terrestrial licence area; and

(ii) the service is a primary commercial television

broadcasting service;

the section 38C licensee will provide:

(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 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

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).

Exemption—cessation of related terrestrial 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 primary commercial television

broadcasting service provided by a terrestrial licensee in a

related terrestrial licence area; and

(b) the 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:

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(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

same, program content as a primary commercial television

broadcasting service provided by a terrestrial licensee in a

related terrestrial licence area; and

(b) the 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

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.

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7C Conditions about the provision of non-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

television broadcasting service (the metropolitan service) in

the metropolitan licence area; and

(aa) the metropolitan service is not the primary commercial

television broadcasting service provided by the licensee

mentioned in paragraph (a); 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

(aa) the metropolitan service is not the primary commercial

television broadcasting service provided by the licensee

mentioned in paragraph (a); and

(b) there is no HDTV multi-channelled commercial television

broadcasting service that:

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(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.

(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 10 December 2013.

(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

(aa) the metropolitan service is not the primary commercial

television broadcasting service provided by the licensee

mentioned in paragraph (a); 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;

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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 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;

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 primary commercial

television broadcasting service provided by the metropolitan

licensee; and

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(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.

(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 10 December 2013.

(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

(b) the metropolitan service is not the 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

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(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), (fb), (fd) 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.

7E Exemption—provision of new commercial television

broadcasting services not technically feasible

If:

(a) a licence is allocated under section 38C; and

(b) 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 that is not the primary commercial

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television broadcasting service provided by the

terrestrial licensee; or

(ii) a SDTV multi-channelled commercial television

broadcasting service that is not the 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: For terrestrial licence area, see clause 7L.

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 that is not the primary commercial

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television broadcasting service provided by the

terrestrial licensee; or

(ii) a SDTV multi-channelled commercial television

broadcasting service that is not the 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.

(4) Before making:

(a) a determination under subclause (1); or

(b) an instrument under subclause (3);

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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) 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 that is not the primary commercial

television broadcasting service provided by the

terrestrial licensee; or

(ii) a SDTV multi-channelled commercial television

broadcasting service that is not the 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: For terrestrial licence area, see clause 7L.

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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;

(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.

7L Definitions

In this Division:

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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:

(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.

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.

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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,

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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

(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;

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(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);

(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:

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(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

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.

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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;

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(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;

(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;

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Community broadcasting licences Part 5

Clause 9

Broadcasting Services Act 1992 573

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(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

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.

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Part 5 Community broadcasting licences

Clause 9

574 Broadcasting Services Act 1992

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(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.

(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

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Clause 9

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consideration in cash or in kind” were inserted after

“advertisements”.

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Schedule 2 Standard conditions

Part 6 Subscription television broadcasting licences

Clause 10

576 Broadcasting Services Act 1992

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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

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Clause 10

Broadcasting Services Act 1992 577

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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);

(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

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Clause 10

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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:

(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.

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Standard conditions Schedule 2

Services provided under class licences Part 7

Clause 11

Broadcasting Services Act 1992 579

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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)

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applies to the licensee—the licensee will comply with that

provision;

(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.

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 Broadcasting Services Act 1992 (consolidated as of June 23, 2017)

Prepared by the Office of Parliamentary Counsel, Canberra

Broadcasting Services Act 1992

No. 110, 1992

Compilation No. 86

Compilation date: 23 June 2017

Includes amendments up to: Act No. 51, 2017

Registered: 4 July 2017

This compilation is in 2 volumes

Volume 1: sections 1–218

Schedules 1 and 2

Volume 2: Schedules 4–7

Endnotes

Each volume has its own contents

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About this compilation

This compilation

This is a compilation of the Broadcasting Services Act 1992 that shows the text

of the law as amended and in force on 23 June 2017 (the compilation date).

The notes at the end of this compilation (the endnotes) include information

about amending laws and the amendment history of provisions of the compiled

law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the

compiled law. Any uncommenced amendments affecting the law are accessible

on the Legislation Register (www.legislation.gov.au). The details of

amendments made up to, but not commenced at, the compilation date are

underlined in the endnotes. For more information on any uncommenced

amendments, see the series page on the Legislation Register for the compiled

law.

Application, saving and transitional provisions for provisions and

amendments

If the operation of a provision or amendment of the compiled law is affected by

an application, saving or transitional provision that is not included in this

compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see

the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as

modified but the modification does not amend the text of the law. Accordingly,

this compilation does not show the text of the compiled law as modified. For

more information on any modifications, see the series page on the Legislation

Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a

provision of the law, details are included in the endnotes.

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Broadcasting Services Act 1992 i

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Contents

Schedule 4—Digital television broadcasting 1

Part 1—Introduction 1 1 Simplified outline of this Schedule....................................................1

2 Definitions.........................................................................................1

4 Digital mode ......................................................................................4

4A HDTV digital mode...........................................................................4

4B SDTV digital mode............................................................................4

5 Remote licence area...........................................................................5

5A SDTV multi-channelled commercial television broadcasting

service................................................................................................5

5B HDTV multi-channelled commercial television broadcasting

service................................................................................................5

5C SDTV multi-channelled national television broadcasting

service................................................................................................6

5D HDTV multi-channelled national television broadcasting

service................................................................................................6

Part 3—ABC/SBS television 8 36 Digital transmitter not to be used to provide a subscription

television broadcasting service etc. ...................................................8

Part 4A—Restrictions on televising anti-siphoning events 9

Division 1—Commercial television broadcasting services 9

41E Multi-channelled commercial television broadcasting

service—restrictions on televising anti-siphoning events ..................9

41FA Multi-channelled commercial television broadcasting service

provided under a section 38C licence—restrictions on

televising anti-siphoning events ......................................................10

41G Primary commercial television broadcasting service.......................12

Division 2—National television broadcasting services 13

41K Multi-channelled national television broadcasting service—

restrictions on televising anti-siphoning events ...............................13

41LA Multi-channelled national television broadcasting service

provided with the use of a satellite—restrictions on

televising anti-siphoning events ......................................................14

41M Primary national television broadcasting service.............................16

41N Primary satellite national television broadcasting service ...............16

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Part 5—Transmitter access regime 17 42 Simplified outline ............................................................................17

43 Definitions.......................................................................................18

43A Designated associated facilities .......................................................18

44 Extended meaning of access ............................................................19

45 Access to broadcasting transmission towers....................................19

45A Access to designated associated facilities........................................21

46 Access to sites of broadcasting transmission towers........................23

47 Terms and conditions of access .......................................................25

48 Code relating to access ....................................................................27

49 Arbitration—acquisition of property ...............................................27

50 Relationship between this Part and the National

Transmission Network Sale Act 1998 ..............................................28

Part 6—Collection of datacasting charge 29 51 Collection of datacasting charge......................................................29

52 Cancellation of certain exemptions from datacasting charge...........30

Part 10—Review of decisions 31 62 Review by the AAT.........................................................................31

63 Notification of decisions to include notification of reasons

and appeal rights..............................................................................31

Schedule 5—Online services 32

Part 1—Introduction 32 2 Simplified outline ............................................................................32

3 Definitions.......................................................................................33

5 Internet content that consists of a film.............................................35

7 Extended meaning of use.................................................................35

Part 2—Internet service providers 37 8 Internet service providers ................................................................37

9 Supply to the public.........................................................................37

Part 4—Complaints to, and investigations by, the

Commissioner 39

Division 1—Making of complaints to the Commissioner 39

23 Complaints about breaches of online provider rules etc. .................39

24 Form of complaint ...........................................................................39

25 Residency etc. of complainant .........................................................39

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Division 2—Investigations by the Commissioner 40

27 Commissioner may investigate matters ...........................................40

28 Conduct of investigations ................................................................40

29 Protection from civil proceedings....................................................40

Division 4—Action to be taken in relation to a complaint about

prohibited content hosted outside Australia 41

40 Action to be taken in relation to a complaint about prohibited

content hosted outside Australia ......................................................41

41 Deferral of action in order to avoid prejudicing a criminal

investigation ....................................................................................43

42 Withdrawal of notification of content—reclassification of

internet content ................................................................................43

43 Withdrawal of notification of content—reclassification of

internet content that consists of a film or a computer game.............44

44 Revocation of standard access-prevention notice—

reclassification of internet content...................................................45

45 Revocation of standard access-prevention notice—

reclassification of internet content that consists of a film or a

computer game ................................................................................46

46 Anti-avoidance—notified internet content ......................................46

47 Anti-avoidance—special access-prevention notice..........................47

48 Compliance with access-prevention notices ....................................49

49 Notification of internet content........................................................49

50 Application of notifications under this Division..............................49

51 Commissioner may be taken to have issued

access-prevention notices ................................................................50

Part 5—Industry codes and industry standards 51

Division 1—Simplified outline 51

52 Simplified outline ............................................................................51

Division 2—Interpretation 52

53 Industry codes..................................................................................52

54 Industry standards............................................................................52

55 Internet activity................................................................................52

56 Section of the internet industry........................................................52

57 Participants in a section of the internet industry ..............................52

58 Designated body ..............................................................................52

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Division 3—General principles relating to industry codes and

industry standards 53

59 Statement of regulatory policy.........................................................53

60 Matters that must be dealt with by industry codes and

industry standards............................................................................53

61 Industry codes and industry standards not to deal with

certain matters .................................................................................57

Division 4—Industry codes 58

62 Registration of industry codes .........................................................58

63 Commissioner may request codes....................................................60

64 Publication of notice where no body or association

represents a section of the internet industry.....................................61

65 Replacement of industry codes ........................................................61

66 Compliance with industry codes......................................................61

67 Formal warnings—breach of industry codes ...................................62

Division 5—Industry standards 63

68 Commissioner may determine an industry standard if a

request for an industry code is not complied with ...........................63

69 Commissioner may determine industry standard where no

industry body or association formed................................................64

70 Commissioner may determine industry standards—total

failure of industry codes ..................................................................65

71 Commissioner may determine industry standards—partial

failure of industry codes ..................................................................66

72 Compliance with industry standards................................................68

73 Formal warnings—breach of industry standards .............................68

74 Variation of industry standards........................................................68

75 Revocation of industry standards.....................................................69

77 Consultation with designated body..................................................69

Division 6—Register of industry codes and industry standards 70

78 Commissioner to maintain Register of industry codes and

industry standards............................................................................70

Part 6—Online provider rules 71 79 Online provider rules .......................................................................71

80 Online provider determinations .......................................................71

81 Exemptions from online provider determinations ...........................72

82 Compliance with online provider rules............................................72

83 Remedial directions—breach of online provider rules ....................73

84 Formal warnings—breach of online provider rules .........................74

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85 Federal Court may order a person to cease supplying internet

carriage services ..............................................................................74

Part 7—Offences 75 86 Continuing offences.........................................................................75

87 Conduct by directors, employees and agents ...................................75

Part 8—Protection from civil and criminal proceedings 78 88 Protection from civil proceedings—internet service

providers..........................................................................................78

Part 9—Operation of State and Territory laws etc. 79 90 Concurrent operation of State and Territory laws............................79

91 Liability of internet content hosts and internet service

providers under State and Territory laws etc. ..................................79

Part 10—Review of decisions 81 92 Review by the AAT.........................................................................81

93 Notification of decisions to include notification of reasons

and appeal rights..............................................................................81

Part 11—Miscellaneous 83 94 Additional Commissioner functions ................................................83

96 Schedule not to affect performance of State or Territory

functions ..........................................................................................83

Schedule 6—Datacasting services 84

Part 1—Introduction 84 1 Simplified outline ............................................................................84

2 Definitions.......................................................................................85

2A Designated datacasting service ........................................................88

3 Educational programs ......................................................................88

4 Information-only programs..............................................................89

5 Foreign-language news or current affairs programs ........................91

6 Datacasting content is taken not to be a television program or

a radio program etc. .........................................................................91

Part 2—Datacasting licences 93 7 Allocation of datacasting licence.....................................................93

8 When datacasting licence must not be allocated..............................93

9 Unsuitable applicant ........................................................................93

10 Transfer of datacasting licences.......................................................94

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11 Surrender of datacasting licences ....................................................95

12 ACMA to maintain Register of datacasting licences .......................95

Part 3—Conditions of datacasting licences 96

Division 1—Genre conditions 96

13 Category A television programs ......................................................96

14 Condition relating to category A television programs .....................97

15 Category B television programs ......................................................98

16 Condition relating to category B television programs .....................99

17 Genre conditions do not apply to Parliamentary proceedings

etc. .................................................................................................101

18 Genre conditions do not apply to matter that consists of no

more than text or still visual images etc.........................................101

18A Genre conditions do not apply to advertising or sponsorship

material..........................................................................................102

19 Genre conditions do not apply to interactive computer games ......102

20 Genre conditions do not apply to internet carriage services or

ordinary email................................................................................102

20AA Genre conditions do not apply to certain content copied from

the internet.....................................................................................103

Division 2—Audio content condition 104

21 Audio content condition ................................................................104

22 Audio content condition does not apply to Parliamentary

proceedings etc. .............................................................................105

23 Audio content condition does not apply to matter that

consists of no more than text or still visual images etc. .................106

23A Audio content condition does not apply to advertising or

sponsorship material ......................................................................106

Division 2A—Genre conditions: anti-avoidance 107

23B Anti-avoidance—declared internet carriage services.....................107

Division 3—Other conditions 108

24 General conditions.........................................................................108

25 Suitability condition ......................................................................110

26 Additional conditions imposed by the ACMA ..............................111

27 Restricted access system................................................................112

Division 4—Exemption orders for content copied from the

internet 113

27A Exemption orders in relation to content copied from the

internet...........................................................................................113

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Part 4—Codes of practice 114 28 Development of codes of practice .................................................114

30 ACMA to maintain Register of codes of practice..........................117

31 ACMA may determine standards where codes of practice fail

or where no code of practice developed ........................................118

32 Consultation on standards..............................................................118

33 Notification of determination or variation or revocation of

standards........................................................................................118

34 Limitation of ACMA’s power in relation to standards ..................119

35 This Part does not apply to internet carriage services or

ordinary email................................................................................119

35A This Part does not apply to the ABC or SBS .................................119

Part 5—Complaints to the ACMA about datacasting services 120 36 Complaints about offences or breach of licence conditions...........120

37 Complaints under codes of practice...............................................120

38 Investigation of complaints by the ACMA....................................121

Part 6—Control of datacasting transmitter licences 122 41 Datacasting transmitter licences not to be controlled by ABC

or SBS ...........................................................................................122

Part 7—Nominated datacaster declarations 123 42 Object of this Part..........................................................................123

43 Datacasting transmitter licence......................................................123

44 Applications for nominated datacaster declarations ......................123

45 Making a nominated datacaster declaration...................................124

46 Effect of nominated datacaster declaration....................................124

47 Revocation of nominated datacaster declaration............................125

48 Register of nominated datacaster declarations...............................126

Part 8—Remedies for breaches of licensing provisions 128

Division 1—Providing a designated datacasting service without a

licence 128

49 Prohibition on providing a designated datacasting service

without a licence............................................................................128

50 Remedial directions—unlicensed datacasting services..................128

51 Exemption for broadcasting licensees etc. .....................................130

51A Exemption for designated teletext services....................................130

Division 2—Breaches of licence conditions 131

52 Offence for breach of conditions ...................................................131

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52A Civil penalty provision relating to breach of conditions of

datacasting licences .......................................................................131

53 Remedial directions—breach of conditions...................................131

54 Suspension and cancellation ..........................................................132

55 Injunctions.....................................................................................134

56 Federal Court’s powers relating to injunctions ..............................134

57 Stay of proceedings relating to additional licence conditions,

remedial directions and suspension/cancellation decisions ...........136

Part 9—Review of decisions 138 58 Review by the Administrative Appeals Tribunal...........................138

59 Notification of decisions to include notification of reasons

and appeal rights............................................................................139

Schedule 7—Content services 140

Part 1—Introduction 140 1 Simplified outline ..........................................................................140

2 Definitions.....................................................................................142

3 Australian connection ....................................................................152

4 Hosting service ..............................................................................153

5 Content service provider................................................................153

6 When content is provided by a content service..............................154

7 When content service is provided to the public etc........................154

8 Links to content .............................................................................154

9 Services supplied by way of a voice call or video call...................154

9A Ancillary subscription television content service ..........................155

10 Classification of live content etc....................................................156

11 Eligible electronic publication.......................................................157

12 Re-transmitted broadcasting services ............................................157

13 Re-transmitted datacasting services...............................................158

14 Restricted access system................................................................158

15 R 18+ content and MA 15+ content ..............................................159

16 Content that consists of a film .......................................................160

17 Extended meaning of use...............................................................160

18 Trained content assessor ................................................................160

19 Extra-territorial application ...........................................................161

Part 2—Classification of content 162

Division 1—Prohibited content and potential prohibited content 162

20 Prohibited content..........................................................................162

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21 Potential prohibited content...........................................................163

Division 2—Classification of content 165

22 Applications for classification of content ......................................165

23 Classification of content ................................................................166

24 Classification of content that consists of a film, a computer

game or an eligible electronic publication .....................................166

25 Classification of content that does not consist of a film, a

computer game or an eligible electronic publication .....................167

26 Deemed classification of content classified under Schedule 5.......168

27 Fees ...............................................................................................168

Division 3—Reclassification 170

28 Reclassification of content.............................................................170

29 Notice of intention to reclassify content ........................................170

Division 4—Review of classification decisions 172

Subdivision A—Review of classification of content 172

30 Persons who may apply for review................................................172

31 Applications for review .................................................................173

32 Classification Review Board may refuse to deal with review

applications that are frivolous etc. .................................................174

33 Review...........................................................................................174

Subdivision B—Review of content that consists of a film or a

computer game 175

34 Review of classification of content that consists of a film or

a computer game............................................................................175

Subdivision C—Review of content that consists of an eligible

electronic publication 175

35 Review of classification of content that consists of an

eligible electronic publication........................................................175

Division 5—Miscellaneous 177

36 Decisions of the Classification Board etc. .....................................177

Part 3—Complaints to, and investigations by, the

Commissioner 178

Division 1—Making of complaints to the Commissioner 178

37 Complaints about prohibited content or potential prohibited

content ...........................................................................................178

38 Complaints relating to breach of a designated

content/hosting service provider rule etc. ......................................180

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39 Form of complaint .........................................................................180

40 Recordings of live content .............................................................181

41 Residency etc. of complainant .......................................................181

42 Escalation of complaints made under industry codes etc...............182

Division 2—Investigations by the Commissioner 183

44 Commissioner may investigate matters .........................................183

45 Conduct of investigations ..............................................................183

46 Protection from civil proceedings..................................................184

Division 3—Action to be taken in relation to hosting services 185

47 Action to be taken in relation to hosting services ..........................185

48 Revocation of interim take-down notices—voluntary

withdrawal of content ....................................................................189

49 Revocation of final take-down notices—reclassification of

content ...........................................................................................190

50 Revocation of final take-down notices—reclassification of

content that consists of a film or a computer game........................190

51 Revocation of final take-down notices—reclassification of a

corresponding print publication.....................................................191

52 Anti-avoidance—special take-down notices..................................191

53 Compliance with rules relating to prohibited content etc. .............193

54 Identification of content.................................................................194

55 Application of notices under this Division ....................................194

Division 4—Action to be taken in relation to live content services 195

56 Action to be taken in relation to live content services ...................195

57 Undertaking—alternative to service-cessation notice....................198

58 Revocation of service-cessation notices—undertaking..................199

59 Revocation of final service-cessation notices—

reclassification of content ..............................................................199

59A Anti-avoidance—special service-cessation notices .......................200

60 Compliance with rules relating to prohibited content etc. .............201

61 Identification of content.................................................................202

Division 5—Action to be taken in relation to links services 203

62 Action to be taken in relation to links services ..............................203

63 Revocation of interim link-deletion notices—voluntary

deletion of link...............................................................................207

64 Revocation of final link-deletion notices—reclassification of

content ...........................................................................................208

65 Revocation of final link-deletion notices—reclassification of

content that consists of a film or a computer game........................208

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66 Revocation of final link-deletion notices—reclassification of

a corresponding print publication ..................................................209

67 Anti-avoidance—special link-deletion notices ..............................209

68 Compliance with rules relating to prohibited content etc. .............211

Division 6—Law enforcement agencies 213

69 Referral of matters to law enforcement agencies ...........................213

70 Deferral of action in order to avoid prejudicing a criminal

investigation—hosting services .....................................................214

71 Deferral of action in order to avoid prejudicing a criminal

investigation—live content services ..............................................214

72 Deferral of action in order to avoid prejudicing a criminal

investigation—links services .........................................................215

Part 4—Industry codes and industry standards 216

Division 1—Simplified outline 216

73 Simplified outline ..........................................................................216

Division 2—Interpretation 217

74 Industry codes................................................................................217

75 Industry standards..........................................................................217

76 Content activity .............................................................................217

77 Sections of the content industry.....................................................217

78 Participants in a section of the content industry ............................218

79 Designated body ............................................................................218

Division 3—General principles relating to industry codes and

industry standards 219

80 Statement of regulatory policy.......................................................219

81 Matters that must be dealt with by industry codes and

industry standards—commercial content providers.......................219

82 Examples of matters that may be dealt with by industry

codes and industry standards .........................................................221

83 Escalation of complaints................................................................223

84 Collection of personal information ................................................223

Division 4—Industry codes 225

85 Registration of industry codes .......................................................225

86 Commissioner may request codes..................................................226

87 Publication of notice where no body or association

represents a section of the content industry ...................................227

88 Replacement of industry codes ......................................................228

89 Compliance with industry codes....................................................228

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90 Formal warnings—breach of industry codes .................................228

Division 5—Industry standards 229

91 Commissioner may determine an industry standard if a

request for an industry code is not complied with .........................229

92 Commissioner may determine industry standard where no

industry body or association formed..............................................230

93 Commissioner may determine industry standards—total

failure of industry codes ................................................................231

94 Commissioner may determine industry standards—partial

failure of industry codes ................................................................232

95 Compliance with industry standards..............................................234

96 Formal warnings—breach of industry standards ...........................234

97 Variation of industry standards......................................................234

98 Revocation of industry standards...................................................235

99 Public consultation on industry standards......................................235

100 Consultation with designated body................................................236

Division 6—Register of industry codes and industry standards 237

101 Commissioner to maintain Register of industry codes and

industry standards..........................................................................237

Division 7—Miscellaneous 238

102 Industry codes may provide for matters by reference to other

instruments ....................................................................................238

103 Industry standards may provide for matters by reference to

other instruments ...........................................................................238

Part 5—Designated content/hosting service provider

determinations 239 104 Designated content/hosting service provider determinations.........239

105 Exemptions from designated content/hosting service

provider determinations.................................................................240

Part 6—Enforcement 241 106 Compliance with designated content/hosting service provider

rules—offence ...............................................................................241

107 Compliance with designated content/hosting service provider

rules—civil penalty provision........................................................241

108 Remedial directions—breach of designated content/hosting

service provider rules ....................................................................242

109 Formal warnings—breach of designated content/hosting

service provider rules ....................................................................243

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110 Federal Court may order a person to cease providing

designated content/hosting services...............................................243

Part 7—Protection from civil and criminal proceedings 244 111 Protection from civil proceedings—service providers...................244

112 Protection from criminal proceedings—Commissioner,

Classification Board and Classification Review Board .................244

Part 8—Review of decisions 246 113 Review by the Administrative Appeals Tribunal...........................246

Part 9—Miscellaneous 249 114 Additional Commissioner functions ..............................................249

115 Recordings of content etc. .............................................................249

116 Samples of content to be submitted for classification....................250

117 Service of summons, process or notice on corporations

incorporated outside Australia .......................................................250

117A Meaning of broadcasting service ..................................................251

119 This Schedule does not limit Schedule 5 .......................................251

120 This Schedule does not limit the Telecommunications Act

1997...............................................................................................251

121 Implied freedom of political communication.................................251

122 Concurrent operation of State and Territory laws..........................252

123 Schedule not to affect performance of State or Territory

functions ........................................................................................252

Endnotes 253

Endnote 1—About the endnotes 253

Endnote 2—Abbreviation key 255

Endnote 3—Legislation history 256

Endnote 4—Amendment history 272

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Clause 1

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Schedule 4—Digital television broadcasting Note: See section 216A.

Part 1—Introduction

1 Simplified outline of this Schedule

National broadcasters who operate a transmitter are subject to

restrictions regarding the services that may be transmitted in digital

mode using the transmitter.

Commercial television licensees and national broadcasters who

provide SDTV or HDTV multi-channelled television broadcasting

services are subject to restrictions regarding the televising of

anti-siphoning events and parts of anti-siphoning events.

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.

Applications to the AAT for review of a decision regarding access

may be made by the person seeking access, or by the owner or

operator of the facility to which access is sought.

An ACMA determination determines when charge imposed by the

Datacasting Charge (Imposition Act) 1998 is due and payable. The

ACMA may also impose a late payment penalty.

2 Definitions

In this Schedule, unless the contrary intention appears:

AAT means the Administrative Appeals Tribunal.

broadcasting transmission tower means:

(a) a tower; or

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(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.

coverage area means:

(a) a metropolitan coverage area; or

(b) a regional coverage area.

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.

licence area means a licence area for a commercial television

broadcasting licence.

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.

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Clause 2

Broadcasting Services Act 1992 3

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national broadcasting service does not include a broadcasting

service provided under the Parliamentary Proceedings

Broadcasting Act 1946.

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 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.

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.

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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 digital mode has the meaning given by clause 4B.

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.

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.

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.

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Clause 5

Broadcasting Services Act 1992 5

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5 Remote licence area

(1) The ACMA may, by legislative instrument, 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.

5A SDTV multi-channelled commercial television broadcasting

service

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.

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

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(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.

(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

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(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.

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Part 3 ABC/SBS television

Clause 36

8 Broadcasting Services Act 1992

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Part 3—ABC/SBS television

36 Digital transmitter not to be used to provide a subscription

television broadcasting service etc.

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

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.

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Restrictions on televising anti-siphoning events Part 4A

Commercial television broadcasting services Division 1

Clause 41E

Broadcasting Services Act 1992 9

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Part 4A—Restrictions on televising anti-siphoning

events

Division 1—Commercial television broadcasting services

41E Multi-channelled commercial television broadcasting service—

restrictions on televising anti-siphoning events

Scope

(1) This clause applies to a commercial television broadcasting

licensee if the licensee provides:

(a) a multi-channelled commercial television broadcasting

service that is the licensee’s primary commercial television

broadcasting service in the licence area of the licence; and

(b) one or more other multi-channelled commercial television

broadcasting services (the secondary commercial television

broadcasting services) in that 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.

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Clause 41FA

10 Broadcasting Services Act 1992

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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).

Licences allocated under section 38C

(4) This clause does not apply in relation to a licence allocated under

section 38C.

41FA 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:

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Clause 41FA

Broadcasting Services Act 1992 11

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(i) a 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 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:

(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

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Clause 41G

12 Broadcasting Services Act 1992

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(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).

41G Primary commercial television broadcasting service

(2) The ACMA may, by legislative instrument, declare that a specified

multi-channelled commercial television broadcasting service

provided by a commercial television broadcasting licensee 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 licensee commences to provide a

multi-channelled commercial television broadcasting service in the

licence area.

Service provided under a section 38C licence

(4) The ACMA may, by legislative instrument, declare that one or

more specified 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 for the licence area concerned.

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National television broadcasting services Division 2

Clause 41K

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Division 2—National television broadcasting services

41K Multi-channelled national television broadcasting service—

restrictions on televising anti-siphoning events

Scope

(1) This clause applies to a national broadcaster if the national

broadcaster provides:

(a) a multi-channelled national television broadcasting service

that is the broadcaster’s primary national television

broadcasting service in a coverage area; and

(b) one or more other multi-channelled national television

broadcasting services (the secondary national television

broadcasting services) in that 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:

(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:

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Clause 41LA

14 Broadcasting Services Act 1992

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(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.

41LA 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 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 multi-channelled national television

broadcasting services (the secondary national television

broadcasting services) in the satellite delivery area.

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Clause 41LA

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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

(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).

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Division 2 National television broadcasting services

Clause 41M

16 Broadcasting Services Act 1992

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41M Primary national television broadcasting service

(1) A national broadcaster must, by written notice given to the

Minister, declare that a specified multi-channelled national

television broadcasting service provided by the national

broadcaster in a specified coverage area is the broadcaster’s

primary national television broadcasting service in the coverage

area.

(2) The national broadcaster must ensure that a declaration under

subclause (1) is in force at all times, 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 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 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.

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Transmitter access regime Part 5

Clause 42

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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.

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Part 5 Transmitter access regime

Clause 43

18 Broadcasting Services Act 1992

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43 Definitions

In this Part:

ACCC means the Australian Competition and Consumer

Commission.

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

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(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.

(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

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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

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

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(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

(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

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22 Broadcasting Services Act 1992

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(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

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):

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(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

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:

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(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.

(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

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(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.

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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

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those members are to be nominated in writing by the Chair of the

ACCC.

(5) Subclause (4) does not, by implication, limit subclause (3).

48 Code relating to access

(1) The ACCC may, by legislative 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.

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.

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(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.

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.

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Collection of datacasting charge Part 6

Clause 51

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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 determination under subclause (2A).

(2A) The ACMA may, by legislative instrument, make a determination

for the purposes of subclause (2).

Late payment penalty

(3) The ACMA may, by legislative 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.

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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.

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.

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.

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Review of decisions Part 10

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Part 10—Review of decisions

62 Review by the AAT

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.

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Part 1 Introduction

Clause 2

32 Broadcasting Services Act 1992

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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 Commissioner is satisfied that internet content hosted

outside Australia is prohibited content or potential prohibited

content, the Commissioner must:

(a) if the Commissioner 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 Commissioner has a reserve power to make an industry

standard if there are no industry codes or if an industry code is

deficient.

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• The Commissioner may make online provider determinations

regulating internet service providers.

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.

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designated notification scheme means a scheme:

(a) in the nature of a scheme for substituted service; and

(b) under which the Commissioner is taken, for the purposes of

this Schedule, to have notified each internet service provider

of a matter or thing.

Note: For example, the Commissioner 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 email; or

(d) information that is transmitted in the form of a broadcasting

service.

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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 email does not include a posting to a newsgroup.

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:

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(a) in isolation; or

(b) in conjunction with one or more other things.

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Internet service providers Part 2

Clause 8

Broadcasting Services Act 1992 37

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 Legislation 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.

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Part 2 Internet service providers

Clause 9

38 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(3) If:

(a) an internet carriage service is used to supply

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.

(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.

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Complaints to, and investigations by, the Commissioner Part 4

Making of complaints to the Commissioner Division 1

Clause 23

Broadcasting Services Act 1992 39

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Part 4—Complaints to, and investigations by, the

Commissioner

Division 1—Making of complaints to the Commissioner

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 Commissioner about the

matter.

24 Form of complaint

(1) A complaint under this Division is to be in writing.

(2) However, the Commissioner 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.

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Division 2 Investigations by the Commissioner

Clause 27

40 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Division 2—Investigations by the Commissioner

27 Commissioner may investigate matters

If the Commissioner thinks that it is desirable to do so, the

Commissioner may, on his or her own initiative or in response to a

complaint made under Division 1, 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

Commissioner thinks fit.

(2) The Commissioner may, for the purposes of an investigation,

obtain information from such persons, and make such inquiries, as

he or she thinks fit.

(3) This clause has effect subject to Part 13 of this Act (which confers

certain investigative powers on the Commissioner).

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 Commissioner in connection with an

investigation under this Division.

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Complaints to, and investigations by, the Commissioner 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 41

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 Commissioner is satisfied that internet content

hosted outside Australia is prohibited content or potential

prohibited content, the Commissioner must:

(a) if the Commissioner 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 Commissioner

and the chief (however described) of an Australian

police force under which the Commissioner 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 Commissioner 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 Commissioner 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:

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Division 4 Action to be taken in relation to a complaint about prohibited content hosted

outside Australia

Clause 40

42 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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

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 Commissioner 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

Commissioner 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 Legislation 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

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Australia Division 4

Clause 41

Broadcasting Services Act 1992 43

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

arrangement between the Commissioner 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 Commissioner’s

powers to refer other matters to a member of an Australian police

force.

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 Commissioner is satisfied that internet

content hosted outside Australia is prohibited content or

potential prohibited content; and

(b) apart from this subclause, the Commissioner 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

Commissioner 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 Commissioner 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:

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outside Australia

Clause 43

44 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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

(b) a code registered, or standard determined, under Part 5 of this

Schedule deals with the matters referred to in

subclause 60(2);

the Commissioner 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

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Clause 44

Broadcasting Services Act 1992 45

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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 Commissioner 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:

(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 Commissioner is taken to have revoked the standard

access-prevention notice.

(2) If a standard access-prevention notice is revoked under this clause,

the Commissioner must give the internet service provider

concerned a written notice stating that the standard

access-prevention notice has been revoked.

Note: The Commissioner may be taken to have given a notice under

subclause (2)—see clause 51.

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Division 4 Action to be taken in relation to a complaint about prohibited content hosted

outside Australia

Clause 45

46 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 Commissioner is taken to have revoked the standard

access-prevention notice.

(2) If a standard access-prevention notice is revoked under this clause,

the Commissioner must give the internet service provider

concerned a written notice stating that the standard

access-prevention notice has been revoked.

Note: The Commissioner 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 Commissioner 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

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Clause 47

Broadcasting Services Act 1992 47

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(d) the Commissioner 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 Commissioner 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 Commissioner 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

(b) a code registered, or standard determined, under Part 5 of this

Schedule deals with the matters referred to in

subclause 60(2);

the Commissioner 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

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outside Australia

Clause 47

48 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(b) the Commissioner 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 Commissioner is satisfied that the similar internet content

is prohibited content or potential prohibited content;

the Commissioner 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 Commissioner 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

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.

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Australia Division 4

Clause 48

Broadcasting Services Act 1992 49

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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outside Australia

Clause 51

50 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

51 Commissioner may be taken to have issued access-prevention

notices

(1) Subject to subclause (2), the Commissioner may, by legislative

instrument, formulate a scheme:

(a) in the nature of a scheme for substituted service; and

(b) under which the Commissioner 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 Commissioner 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 Commissioner were a

reference to each internet service provider.

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Industry codes and industry standards Part 5

Simplified outline Division 1

Clause 52

Broadcasting Services Act 1992 51

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 Commissioner.

• Compliance with an industry code is voluntary unless the

Commissioner directs a particular participant in the internet

industry to comply with the code.

• The Commissioner 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.

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Part 5 Industry codes and industry standards

Division 2 Interpretation

Clause 53

52 Broadcasting Services Act 1992

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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.

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Clause 59

Broadcasting Services Act 1992 53

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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

Commissioner 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;

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Clause 60

54 Broadcasting Services Act 1992

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(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;

(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 email 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

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Broadcasting Services Act 1992 55

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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

(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.

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Clause 60

56 Broadcasting Services Act 1992

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Note: For specification by class, see subsection 33(3AB) of the Acts

Interpretation Act 1901.

(5) An industry standard made by the Commissioner 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

Commissioner 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 Legislation Act

2003.

(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

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Clause 61

Broadcasting Services Act 1992 57

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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).

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Division 4 Industry codes

Clause 62

58 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Division 4—Industry codes

62 Registration of industry codes

(1) This clause applies if:

(a) the Commissioner 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

Commissioner; and

(d) the Commissioner 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 Commissioner is satisfied that, before giving the copy of

the code to the Commissioner:

(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 Commissioner is satisfied that, before giving the copy of

the code to the Commissioner:

(i) the body or association published a draft of the code and

invited participants in that section of the industry to

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Clause 62

Broadcasting Services Act 1992 59

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 participants in that

section of the industry within that period; and

(g) the Commissioner 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 Commissioner 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.

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Clause 63

60 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

63 Commissioner may request codes

(1) If the Commissioner is satisfied that a body or association

represents a particular section of the internet industry, the

Commissioner 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

(b) give the Commissioner 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 Commissioner must not make a request under subclause (1) in

relation to a particular section of the internet industry unless the

Commissioner 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 Commissioner 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).

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Clause 64

Broadcasting Services Act 1992 61

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

64 Publication of notice where no body or association represents a

section of the internet industry

(1) If the Commissioner is satisfied that a particular section of the

internet industry is not represented by a body or association, the

Commissioner 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 Commissioner 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.

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 Commissioner 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;

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Clause 67

62 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

the Commissioner 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 Commissioner may issue a formal warning if the person

contravenes an industry code registered under this Part.

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Clause 68

Broadcasting Services Act 1992 63

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Division 5—Industry standards

68 Commissioner may determine an industry standard if a request

for an industry code is not complied with

(1) This clause applies if:

(a) the Commissioner 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 Commissioner

subsequently refuses to register the code; and

(c) the Commissioner is satisfied that it is necessary or

convenient for the Commissioner 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 Commissioner 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

Commissioner must consult the body or association to whom the

request mentioned in paragraph (1)(a) was made.

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Clause 69

64 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(5) The Minister may give the Commissioner a written direction as to

the exercise of his or her powers under this clause.

69 Commissioner may determine industry standard where no

industry body or association formed

(1) This clause applies if:

(a) the Commissioner is satisfied that a particular section of the

internet industry is not represented by a body or association;

and

(b) the Commissioner 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

Commissioner 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 Commissioner is satisfied that it is necessary or

convenient for the Commissioner 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 Commissioner 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.

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Clause 70

Broadcasting Services Act 1992 65

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(4) The Minister may give the Commissioner a written direction as to

the exercise of his or her powers under this clause.

70 Commissioner 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

(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 Commissioner is satisfied that the code is totally deficient

(as defined by subclause (7)); and

(c) the Commissioner 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 Commissioner is satisfied that it is

necessary or convenient for the Commissioner 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 Commissioner 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 Commissioner is satisfied that a body or association

represents that section of the industry, the Commissioner must

consult the body or association before determining an industry

standard under subclause (3).

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Clause 71

66 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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 Commissioner a written direction as to

the exercise of his or her powers under this clause.

71 Commissioner 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 Commissioner 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 Commissioner 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 Commissioner is satisfied that it is

necessary or convenient for the Commissioner to determine a

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Broadcasting Services Act 1992 67

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 Commissioner 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 Commissioner is satisfied that a body or association

represents that section of the industry, the Commissioner 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:

(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.

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Clause 72

68 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(8) The Minister may give the Commissioner a written direction as to

the exercise of his or her 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 Commissioner may issue a formal warning if the person

contravenes an industry standard registered under this Part.

74 Variation of industry standards

The Commissioner may, by legislative instrument, vary an industry

standard that applies to participants in a particular section of the

internet industry if the Commissioner 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.

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Clause 75

Broadcasting Services Act 1992 69

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

75 Revocation of industry standards

(1) The Commissioner 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.

77 Consultation with designated body

(1) Before determining or varying an industry standard, the

Commissioner must consult the designated body.

(2) Before revoking an industry standard under subclause 75(1), the

Commissioner must consult the designated body.

Note: Designated body is defined by clause 58.

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Clause 78

70 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Division 6—Register of industry codes and industry

standards

78 Commissioner to maintain Register of industry codes and

industry standards

(1) The Commissioner is to maintain a Register in which the

Commissioner 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.

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Clause 79

Broadcasting Services Act 1992 71

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 Commissioner 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.

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Clause 81

72 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(5) The Commissioner must not make an online provider

determination unless the determination relates to a matter specified

in the regulations.

(6) The Commissioner must not make an online provider

determination if the determination relates to a matter specified in

regulations in force 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 Commissioner 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 commits 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.

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Broadcasting Services Act 1992 73

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

(2) The Commissioner 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 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: 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:

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Clause 84

74 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

84 Formal warnings—breach of online provider rules

The Commissioner 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 Commissioner is satisfied that a person who is an internet

service provider is supplying an internet carriage service otherwise

than in accordance with an online provider rule, the Commissioner

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.

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Clause 86

Broadcasting Services Act 1992 75

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Part 7—Offences

86 Continuing offences

A person who contravenes clause 82 or subclause 83(4) commits 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

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76 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

(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.

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Offences Part 7

Clause 87

Broadcasting Services Act 1992 77

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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.

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.

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Part 8 Protection from civil and criminal proceedings

Clause 88

78 Broadcasting Services Act 1992

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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.

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Operation of State and Territory laws etc. Part 9

Clause 90

Broadcasting Services Act 1992 79

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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).

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Clause 91

80 Broadcasting Services Act 1992

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Note: For specification by class, see subsection 13(3) of the Legislation Act

2003.

(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 Legislation 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 Legislation 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.

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Review of decisions Part 10

Clause 92

Broadcasting Services Act 1992 81

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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 Commissioner:

(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 Commissioner 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 Commissioner makes a decision that is reviewable under

clause 92, the Commissioner is to include in the document by

which the decision is notified:

(a) a statement setting out the reasons for the decision; and

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(b) a statement to the effect that an application may be made to

the AAT for a review of the decision.

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Part 11—Miscellaneous

94 Additional Commissioner functions

The Commissioner 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 himself or herself and advise the Minister on

technological developments and service trends in the internet

industry.

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

or the Australian Capital Territory.

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Schedule 6 Datacasting services

Part 1 Introduction

Clause 1

84 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 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;

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(d) content in the form of text or still visual images;

(e) Parliamentary broadcasts;

(f) ordinary email;

(g) internet content.

• 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 may 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.

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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 this

Schedule; and

(b) the service remains substantially the same as the service

provided throughout that 2-year period.

drama program has the same meaning as in section 103B.

educational program has the meaning given by clause 3.

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

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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

community about social, economic or political issues of

current relevance to the general community.

nominated datacaster declaration means a declaration under

clause 45.

ordinary email 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,

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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.

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

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(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, by legislative instrument, make a determination

providing that, for the purposes of this Schedule, specified matter

is taken to be an educational program.

(4) The ACMA may, by legislative instrument, make a 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.

Note: For specification by class, see subsection 13(3) of the Legislation 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;

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(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, by legislative instrument, make a determination

providing that, for the purposes of this Schedule, specified matter

is taken to be an information-only program.

(4) The ACMA may, by legislative instrument, make a determination

providing that, for the purposes of this Schedule, specified matter

is taken not to be an information-only program.

(5) A determination under subclause (3) or (4) has effect accordingly.

Note: For specification by class, see subsection 13(3) of the Legislation 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.

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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.

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

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(c) that service is taken not to be a broadcasting service, a

television service or a radio service.

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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.

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

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(aa) a breach of a civil penalty provision occurring; or

(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.

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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.

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

(1) The ACMA is to maintain a Register in which the ACMA

includes:

(a) particulars of 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.

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Part 3 Conditions of datacasting licences

Division 1 Genre conditions

Clause 13

96 Broadcasting Services Act 1992

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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, by legislative instrument, make a determination

providing that, for the purposes of this Division, a specified

television program or specified matter is taken to be a category A

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television program covered by a specified paragraph of

subclause (1).

(5) The ACMA may, by legislative instrument, make a 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.

Note: For specification by class, see subsection 13(3) of the Legislation 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.

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Clause 15

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(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, by legislative instrument, make a 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).

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Conditions of datacasting licences Part 3

Genre conditions Division 1

Clause 16

Broadcasting Services Act 1992 99

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(5) The ACMA may, by legislative instrument, make a 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).

(6) A determination under subclause (4) or (5) has effect accordingly.

Note: For specification by class, see subsection 13(3) of the Legislation 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:

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Part 3 Conditions of datacasting licences

Division 1 Genre conditions

Clause 16

100 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(i) the nature of the bulletin or program; and

(ii) the circumstances in which the bulletin or program is

provided;

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

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Datacasting services Schedule 6

Conditions of datacasting licences Part 3

Genre conditions Division 1

Clause 17

Broadcasting Services Act 1992 101

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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:

(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:

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Part 3 Conditions of datacasting licences

Division 1 Genre conditions

Clause 18A

102 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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 email

(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 email.

(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.

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Conditions of datacasting licences Part 3

Genre conditions Division 1

Clause 20AA

Broadcasting Services Act 1992 103

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

(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.

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Schedule 6 Datacasting services

Part 3 Conditions of datacasting licences

Division 2 Audio content condition

Clause 21

104 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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, by legislative instrument, make a 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, by legislative instrument, make a 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.

Note: For specification by class, see subsection 13(3) of the Legislation Act

2003.

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Datacasting services Schedule 6

Conditions of datacasting licences Part 3

Audio content condition Division 2

Clause 22

Broadcasting Services Act 1992 105

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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Part 3 Conditions of datacasting licences

Division 2 Audio content condition

Clause 23

106 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(d) a hearing conducted by a body established for a public

purpose by a law of the Commonwealth or of a State or

Territory.

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.

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Conditions of datacasting licences Part 3

Genre conditions: anti-avoidance Division 2A

Clause 23B

Broadcasting Services Act 1992 107

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Schedule 6 Datacasting services

Part 3 Conditions of datacasting licences

Division 3 Other conditions

Clause 24

108 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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) 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;

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Conditions of datacasting licences Part 3

Other conditions Division 3

Clause 24

Broadcasting Services Act 1992 109

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(i) 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

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 email.

(3) The condition set out in paragraph (1)(b) does not apply in relation

to the transmission of ordinary email.

(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

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Part 3 Conditions of datacasting licences

Division 3 Other conditions

Clause 25

110 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

(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 email.

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

(d) the record in situations requiring trust and candour of each

such person; and

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Conditions of datacasting licences Part 3

Other conditions Division 3

Clause 26

Broadcasting Services Act 1992 111

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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Part 3 Conditions of datacasting licences

Division 3 Other conditions

Clause 27

112 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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 legislative 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 Legislation 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.

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Datacasting services Schedule 6

Conditions of datacasting licences Part 3

Exemption orders for content copied from the internet Division 4

Clause 27A

Broadcasting Services Act 1992 113

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Schedule 6 Datacasting services

Part 4 Codes of practice

Clause 28

114 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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Codes of practice Part 4

Clause 28

Broadcasting Services Act 1992 115

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(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;

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Part 4 Codes of practice

Clause 28

116 Broadcasting Services Act 1992

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(f) such other matters relating to datacasting content as are of

concern to the community.

(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

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not portray material that goes beyond the previous “AO”

classification criteria.

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.

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.

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Part 4 Codes of practice

Clause 31

118 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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, by legislative instrument, 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 legislative instrument, determine a standard in

relation to that matter.

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.

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.

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Clause 34

Broadcasting Services Act 1992 119

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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

email

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 email.

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.

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Schedule 6 Datacasting services

Part 5 Complaints to the ACMA about datacasting services

Clause 36

120 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Clause 38

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(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 email.

(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

The ACMA may investigate the complaint if the ACMA thinks

that it is desirable to do so.

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Schedule 6 Datacasting services

Part 6 Control of datacasting transmitter licences

Clause 41

122 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Datacasting services Schedule 6

Nominated datacaster declarations Part 7

Clause 42

Broadcasting Services Act 1992 123

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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:

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Part 7 Nominated datacaster declarations

Clause 45

124 Broadcasting Services Act 1992

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(a) in writing; and

(b) in accordance with a form approved in writing by the

ACMA.

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

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Clause 47

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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

(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

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Part 7 Nominated datacaster declarations

Clause 48

126 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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

(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.

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(2) The Register may be maintained by electronic means.

(3) The Register is to be made available for inspection on the internet.

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Schedule 6 Datacasting services

Part 8 Remedies for breaches of licensing provisions

Division 1 Providing a designated datacasting service without a licence

Clause 49

128 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 commits 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) 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) 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

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Providing a designated datacasting service without a licence Division 1

Clause 50

Broadcasting Services Act 1992 129

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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.

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.

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Part 8 Remedies for breaches of licensing provisions

Division 1 Providing a designated datacasting service without a licence

Clause 51

130 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

(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.

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Remedies for breaches of licensing provisions Part 8

Breaches of licence conditions Division 2

Clause 52

Broadcasting Services Act 1992 131

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Division 2—Breaches of licence conditions

52 Offence for breach of conditions

(1) A person commits 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.

(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.

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.

(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.

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.

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Part 8 Remedies for breaches of licensing provisions

Division 2 Breaches of licence conditions

Clause 54

132 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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 commits 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) 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) 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.

54 Suspension and cancellation

(1) If a person who is a datacasting licensee:

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(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.

(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

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) or (3), 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.

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Schedule 6 Datacasting services

Part 8 Remedies for breaches of licensing provisions

Division 2 Breaches of licence conditions

Clause 55

134 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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,

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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

(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

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Schedule 6 Datacasting services

Part 8 Remedies for breaches of licensing provisions

Division 2 Breaches of licence conditions

Clause 57

136 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

(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

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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

(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.

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Part 9 Review of decisions

Clause 58

138 Broadcasting Services Act 1992

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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

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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.

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Schedule 7 Content services

Part 1 Introduction

Clause 1

140 Broadcasting Services Act 1992

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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 Commissioner about

prohibited content, or potential prohibited content, in relation

to certain services.

• The Commissioner 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

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(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 Commissioner has a reserve power to make an industry

standard if there are no industry codes or if an industry code is

deficient.

• The Commissioner 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.

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Clause 2

142 Broadcasting Services Act 1992

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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:

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(a) the Australian Federal Police; or

(b) the police force of a State or Territory.

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.

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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

(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:

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(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

(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 Legislation 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.

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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.

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.

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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 Legislation 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

(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 Legislation 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;

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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 Legislation 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.

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.

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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)

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.

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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;

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.

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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.

service includes a website or a distinct part of a website.

special link-deletion notice means a notice under clause 67.

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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.

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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 Legislation 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.

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154 Broadcasting Services Act 1992

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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.

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;

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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:

(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.

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Clause 10

156 Broadcasting Services Act 1992

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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

(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.

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(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.

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.

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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 Commissioner 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 Legislation Act

2003.

(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 Commissioner

must have regard to:

(a) the objective of protecting children from exposure to content

that is unsuitable for children; and

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(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 Commissioner considers

relevant.

(5) The Commissioner 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:

(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;

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(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:

(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

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(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.

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Division 1 Prohibited content and potential prohibited content

Clause 20

162 Broadcasting Services Act 1992

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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

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(d) 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) 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.

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(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.

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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 Commissioner.

(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.

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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:

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(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 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.

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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.

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.

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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.

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.

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Division 3 Reclassification

Clause 28

170 Broadcasting Services Act 1992

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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)), the

Classification Board must not reclassify the content within the

2-year period beginning on the day the decision to classify took

effect.

(2) After that 2-year period, any of the following may request that the

Classification Board reclassify the content:

(a) the Minister;

(b) the Commissioner;

(c) if another person applied, under clause 22, for classification

of the content—the other person.

(3) If the Classification Board is requested to act under subsection (2),

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 Commissioner;

(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;

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then:

(c) the Director of the Classification Board must give notice of

that intention, inviting submissions about the matter; and

(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 Commissioner; 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.

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Division 4 Review of classification decisions

Clause 30

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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 Commissioner;

(c) if a person other than the Commissioner 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.

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(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 Commissioner 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 Commissioner applied, under

clause 22, for classification of the content;

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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.

(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.

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(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:

(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

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(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.

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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.

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Schedule 7 Content services

Part 3 Complaints to, and investigations by, the Commissioner

Division 1 Making of complaints to the Commissioner

Clause 37

178 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Part 3—Complaints to, and investigations by, the

Commissioner

Division 1—Making of complaints to the Commissioner

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

Commissioner 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 Commissioner 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 Commissioner about the matter.

Content of complaint

(4) A complaint under subclause (1), (2) or (3) about particular content

must:

(a) identify the content; and

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Complaints to, and investigations by, the Commissioner Part 3

Making of complaints to the Commissioner Division 1

Clause 37

Broadcasting Services Act 1992 179

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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

(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 Commissioner

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.

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Part 3 Complaints to, and investigations by, the Commissioner

Division 1 Making of complaints to the Commissioner

Clause 38

180 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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 Commissioner 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 Commissioner

about the matter.

39 Form of complaint

(1) A complaint under this Division is to be in writing.

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Complaints to, and investigations by, the Commissioner Part 3

Making of complaints to the Commissioner Division 1

Clause 40

Broadcasting Services Act 1992 181

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(2) However, the Commissioner 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

Commissioner, is taken to have infringed copyright.

(2) Subclause (1) does not apply if:

(a) the Commissioner is satisfied that the complaint is:

(i) frivolous; or

(ii) vexatious; or

(iii) not made in good faith; or

(b) the Commissioner 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

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Part 3 Complaints to, and investigations by, the Commissioner

Division 1 Making of complaints to the Commissioner

Clause 42

182 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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 Commissioner under the

code, standard or determination.

(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.

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Complaints to, and investigations by, the Commissioner Part 3

Investigations by the Commissioner Division 2

Clause 44

Broadcasting Services Act 1992 183

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Division 2—Investigations by the Commissioner

44 Commissioner may investigate matters

The Commissioner may, on his or her own initiative or in response

to a complaint made under Division 1, investigate any of the

following matters if the Commissioner 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;

(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

Commissioner thinks fit.

(2) The Commissioner may, for the purposes of an investigation,

obtain information from such persons, and make such inquiries, as

he or she thinks fit.

(3) This clause has effect subject to Part 13 of this Act (which confers

certain investigative powers on the Commissioner).

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Part 3 Complaints to, and investigations by, the Commissioner

Division 2 Investigations by the Commissioner

Clause 46

184 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 Commissioner in connection with an

investigation under this Division.

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Complaints to, and investigations by, the Commissioner Part 3

Action to be taken in relation to hosting services Division 3

Clause 47

Broadcasting Services Act 1992 185

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

Commissioner 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 Commissioner 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

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Part 3 Complaints to, and investigations by, the Commissioner

Division 3 Action to be taken in relation to hosting services

Clause 47

186 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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

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

Commissioner 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 Commissioner 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 Commissioner 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 Commissioner 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.

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Complaints to, and investigations by, the Commissioner Part 3

Action to be taken in relation to hosting services Division 3

Clause 47

Broadcasting Services Act 1992 187

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Note: For type A remedial situation, see subclause (6).

(3) If:

(a) in the course of an investigation under Division 2, the

Commissioner 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 content does not consist of an eligible electronic

publication; and

(c) the Commissioner 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 Commissioner 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 Commissioner 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 Commissioner is informed under paragraph 23(b) of the

classification of particular content, the Commissioner 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;

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Part 3 Complaints to, and investigations by, the Commissioner

Division 3 Action to be taken in relation to hosting services

Clause 47

188 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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;

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 Commissioner makes a decision under subclause (2) or (3) to

apply to the Classification Board for classification of content, the

Commissioner must give the relevant hosting service provider a

written notice setting out the decision.

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Action to be taken in relation to hosting services Division 3

Clause 48

Broadcasting Services Act 1992 189

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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 Commissioner a written undertaking not to

host the content;

the Commissioner 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.

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Part 3 Complaints to, and investigations by, the Commissioner

Division 3 Action to be taken in relation to hosting services

Clause 49

190 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(2) If an interim take-down notice is revoked under this clause, the

Commissioner 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 Commissioner must revoke the final take-down notice.

(2) If a final take-down notice is revoked under this clause, the

Commissioner must give the hosting service provider concerned a

written notice stating that the final take-down notice has been

revoked.

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 Commissioner must revoke the final take-down notice.

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Complaints to, and investigations by, the Commissioner Part 3

Action to be taken in relation to hosting services Division 3

Clause 51

Broadcasting Services Act 1992 191

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(2) If a final take-down notice is revoked under this clause, the

Commissioner 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 Commissioner must revoke the final take-down notice.

(2) If a final take-down notice is revoked under this clause, the

Commissioner must give the hosting service provider concerned a

written notice stating that the final take-down notice has been

revoked.

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 Commissioner 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

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Part 3 Complaints to, and investigations by, the Commissioner

Division 3 Action to be taken in relation to hosting services

Clause 52

192 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(c) the Commissioner is satisfied that the similar content is

prohibited content or potential prohibited content;

the Commissioner 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).

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

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Complaints to, and investigations by, the Commissioner Part 3

Action to be taken in relation to hosting services Division 3

Clause 53

Broadcasting Services Act 1992 193

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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.

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Part 3 Complaints to, and investigations by, the Commissioner

Division 3 Action to be taken in relation to hosting services

Clause 54

194 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Complaints to, and investigations by, the Commissioner Part 3

Action to be taken in relation to live content services Division 4

Clause 56

Broadcasting Services Act 1992 195

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

Commissioner 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 Commissioner 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

Commissioner is satisfied that:

(i) live content provided by a live content service is

potential prohibited content; and

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Part 3 Complaints to, and investigations by, the Commissioner

Division 4 Action to be taken in relation to live content services

Clause 56

196 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(ii) the live content service has an Australian connection;

and

(b) the Commissioner 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 Commissioner has:

(i) a recording of the content; or

(ii) a copy of such a recording;

the Commissioner 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 Commissioner 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

Commissioner 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 Commissioner 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 Commissioner has:

(i) a recording of the content; or

(ii) a copy of such a recording;

the Commissioner must:

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Broadcasting Services Act 1992 197

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(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 Commissioner 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 B remedial situation, see subclause (7).

(4) If, in response to an application made as required by subclause (2)

or (3), the Commissioner is informed under paragraph 23(b) of the

classification of particular content, the Commissioner 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 Commissioner makes a decision under subclause (2) or (3) to

apply to the Classification Board under clause 22 for classification

of content, the Commissioner must give the relevant live content

service provider a written notice setting out the decision.

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Part 3 Complaints to, and investigations by, the Commissioner

Division 4 Action to be taken in relation to live content services

Clause 57

198 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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

Commissioner 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 Commissioner 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

Commissioner a written undertaking relating to the live

content service;

then:

(d) the Commissioner may accept the undertaking; and

(e) if the Commissioner accepts the undertaking—the

Commissioner is not required to take action under

subclause 56(1), (2) or (3) in relation to the content.

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Clause 58

Broadcasting Services Act 1992 199

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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 Commissioner a written undertaking

relating to the live content service concerned;

the Commissioner 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 Commissioner 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;

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Part 3 Complaints to, and investigations by, the Commissioner

Division 4 Action to be taken in relation to live content services

Clause 59A

200 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

the Commissioner must revoke the final service-cessation notice.

(2) If a final service-cessation notice is revoked under this clause, the

Commissioner 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

(b) the Commissioner 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 Commissioner 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 Commissioner 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

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Broadcasting Services Act 1992 201

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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.

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Division 4 Action to be taken in relation to live content services

Clause 61

202 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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.

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Action to be taken in relation to links services Division 5

Clause 62

Broadcasting Services Act 1992 203

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

Commissioner 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 Commissioner 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

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Clause 62

204 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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

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

Commissioner 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 Commissioner 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 Commissioner 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 Commissioner

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.

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Clause 62

Broadcasting Services Act 1992 205

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Note: For type A remedial situation, see subclause (6).

(3) If:

(a) in the course of an investigation under Division 2, the

Commissioner 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 content does not consist of an eligible electronic

publication; and

(c) the Commissioner 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 Commissioner 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 Commissioner

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 Commissioner is informed under paragraph 23(b) of the

classification of particular content, the Commissioner 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

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Clause 62

206 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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;

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 Commissioner makes a decision under subclause (2) or (3) to

apply to the Classification Board under clause 22 for classification

of content, the Commissioner must give the relevant links service

provider a written notice setting out the decision.

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Clause 63

Broadcasting Services Act 1992 207

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

(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 Commissioner a written undertaking not to

provide a link to the content;

the Commissioner may:

(c) accept the undertaking; and

(d) revoke the interim link-deletion notice; and

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Clause 64

208 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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

Commissioner 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 Commissioner must revoke the final link-deletion notice.

(2) If a final link-deletion notice is revoked under this clause, the

Commissioner 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

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Clause 66

Broadcasting Services Act 1992 209

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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 Commissioner must revoke the final link-deletion notice.

(2) If a final link-deletion notice is revoked under this clause, the

Commissioner 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 Commissioner must revoke the final link-deletion notice.

(2) If a final link-deletion notice is revoked under this clause, the

Commissioner must give the links service provider concerned a

written notice stating that the final link-deletion notice has been

revoked.

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

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Clause 67

210 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(b) the Commissioner 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 Commissioner is satisfied that the similar content is

prohibited content or potential prohibited content;

the Commissioner 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

(b) the similar content is not provided by a content service

provided to the public (whether on payment of a fee or

otherwise).

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Clause 68

Broadcasting Services Act 1992 211

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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Clause 68

212 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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Law enforcement agencies Division 6

Clause 69

Broadcasting Services Act 1992 213

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

Commissioner 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 Commissioner must notify the content to:

(c) a member of an Australian police force; or

(d) if there is an arrangement between the Commissioner and the

chief (however described) of an Australian police force under

which the Commissioner 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 Commissioner 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 Commissioner’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 Commissioner is not required to notify particular content

under subclause (1) if the Commissioner has already notified the

content under paragraph 40(1)(a) of Schedule 5.

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Division 6 Law enforcement agencies

Clause 70

214 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

Commissioner 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 Commissioner 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

Commissioner 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 Commissioner 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

Commissioner 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 Commissioner 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

Commissioner that the taking of that action should be

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Clause 72

Broadcasting Services Act 1992 215

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

deferred until the end of a particular period in order to avoid

prejudicing a criminal investigation;

the Commissioner 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

Commissioner 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 Commissioner 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

Commissioner 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 Commissioner may defer taking that action until the end of that

period.

(2) Subclause (1) has effect despite anything in clause 62.

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Schedule 7 Content services

Part 4 Industry codes and industry standards

Division 1 Simplified outline

Clause 73

216 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 Commissioner.

• Compliance with an industry code is voluntary unless the

Commissioner directs a particular participant in the content

industry to comply with the code.

• The Commissioner 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.

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Interpretation Division 2

Clause 74

Broadcasting Services Act 1992 217

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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;

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Clause 78

218 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(c) links service providers, where the relevant links services

have an Australian connection;

(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.

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General principles relating to industry codes and industry standards Division 3

Clause 80

Broadcasting Services Act 1992 219

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

Commissioner 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 Commissioner 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

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Part 4 Industry codes and industry standards

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Clause 81

220 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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

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

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Clause 82

Broadcasting Services Act 1992 221

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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:

(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

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Clause 82

222 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 Commissioner 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

(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;

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Broadcasting Services Act 1992 223

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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;

(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

Commissioner 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.

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Clause 84

224 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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Industry codes Division 4

Clause 85

Broadcasting Services Act 1992 225

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Division 4—Industry codes

85 Registration of industry codes

(1) This clause applies if:

(a) the Commissioner 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

Commissioner; and

(d) the Commissioner 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 Commissioner is satisfied that, before giving the copy of

the code to the Commissioner:

(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 Commissioner is satisfied that, before giving the copy of

the code to the Commissioner:

(i) the body or association published a draft of the code and

invited participants in that section of the industry to

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Clause 86

226 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 participants in that

section of the industry within that period; and

(g) the Commissioner 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 Commissioner 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 Commissioner may request codes

(1) If the Commissioner is satisfied that a body or association

represents a particular section of the content industry, the

Commissioner 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 Commissioner 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.

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Clause 87

Broadcasting Services Act 1992 227

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(3) The Commissioner must not make a request under subclause (1) in

relation to a particular section of the content industry unless the

Commissioner 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 Commissioner 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 Commissioner is satisfied that a particular section of the

content industry is not represented by a body or association, the

Commissioner may publish a notice on the Commissioner’s

website:

(a) stating that, if such a body or association were to come into

existence within a specified period, the Commissioner 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.

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Part 4 Industry codes and industry standards

Division 4 Industry codes

Clause 88

228 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

89 Compliance with industry codes

(1) If:

(a) a person is a participant in a particular section of the content

industry; and

(b) the Commissioner 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 Commissioner 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 Commissioner may issue a formal warning if the person

contravenes an industry code registered under this Part.

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Industry standards Division 5

Clause 91

Broadcasting Services Act 1992 229

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Division 5—Industry standards

91 Commissioner may determine an industry standard if a request

for an industry code is not complied with

(1) This clause applies if:

(a) the Commissioner 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 Commissioner

subsequently refuses to register the code; and

(c) the Commissioner is satisfied that it is necessary or

convenient for the Commissioner 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 Commissioner 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

Commissioner must consult the body or association to whom the

request mentioned in paragraph (1)(a) was made.

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Clause 92

230 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(4) The Minister may, by legislative instrument, give the

Commissioner a written direction as to the exercise of his or her

powers under this clause.

92 Commissioner may determine industry standard where no

industry body or association formed

(1) This clause applies if:

(a) the Commissioner is satisfied that a particular section of the

content industry is not represented by a body or association;

and

(b) the Commissioner 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

Commissioner 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 Commissioner is satisfied that it is necessary or

convenient for the Commissioner 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 Commissioner 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.

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Clause 93

Broadcasting Services Act 1992 231

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(3) The Minister may, by legislative instrument, give the

Commissioner a written direction as to the exercise of his or her

powers under this clause.

93 Commissioner 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

(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 Commissioner is satisfied that the code is totally deficient

(as defined by subclause (6)); and

(c) the Commissioner 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 Commissioner is satisfied that it is

necessary or convenient for the Commissioner 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 Commissioner 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 Commissioner is satisfied that a body or association

represents that section of the industry, the Commissioner must

consult the body or association before determining an industry

standard under subclause (3).

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Clause 94

232 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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

Commissioner a written direction as to the exercise of his or her

powers under this clause.

94 Commissioner 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 Commissioner 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 Commissioner 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

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Broadcasting Services Act 1992 233

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(e) that period ends and the Commissioner is satisfied that it is

necessary or convenient for the Commissioner 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 Commissioner 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 Commissioner is satisfied that a body or association

represents that section of the industry, the Commissioner 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:

(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.

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Schedule 7 Content services

Part 4 Industry codes and industry standards

Division 5 Industry standards

Clause 95

234 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(7) The Minister may, by legislative instrument, give the

Commissioner a written direction as to the exercise of his or her

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 Commissioner may issue a formal warning if the person

contravenes an industry standard registered under this Part.

97 Variation of industry standards

The Commissioner may, by legislative instrument, vary an industry

standard that applies to participants in a particular section of the

content industry if the Commissioner 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.

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Content services Schedule 7

Industry codes and industry standards Part 4

Industry standards Division 5

Clause 98

Broadcasting Services Act 1992 235

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

98 Revocation of industry standards

(1) The Commissioner 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

Commissioner must:

(a) make a copy of the draft available on its website; and

(b) publish a notice on its website:

(i) stating that the Commissioner has prepared a draft of

the industry standard or variation; and

(ii) inviting interested persons to give written comments

about the draft to the Commissioner 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.

(4) If interested persons have given comments in accordance with a

notice under subclause (1), the Commissioner must have due

regard to those comments in determining or varying the industry

standard, as the case may be.

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Schedule 7 Content services

Part 4 Industry codes and industry standards

Division 5 Industry standards

Clause 100

236 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

100 Consultation with designated body

(1) Before determining or varying an industry standard, the

Commissioner must consult the designated body.

(2) Before revoking an industry standard under subclause 98(1), the

Commissioner must consult the designated body.

Note: Designated body is defined by clause 79.

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Content services Schedule 7

Industry codes and industry standards Part 4

Register of industry codes and industry standards Division 6

Clause 101

Broadcasting Services Act 1992 237

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Division 6—Register of industry codes and industry

standards

101 Commissioner to maintain Register of industry codes and

industry standards

(1) The Commissioner is to maintain a Register in which the

Commissioner 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.

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Schedule 7 Content services

Part 4 Industry codes and industry standards

Division 7 Miscellaneous

Clause 102

238 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Content services Schedule 7

Designated content/hosting service provider determinations Part 5

Clause 104

Broadcasting Services Act 1992 239

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Part 5—Designated content/hosting service

provider determinations

104 Designated content/hosting service provider determinations

(1) The Commissioner 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 Commissioner 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 Commissioner to make decisions of an

administrative character.

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Schedule 7 Content services

Part 5 Designated content/hosting service provider determinations

Clause 105

240 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

(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.

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Content services Schedule 7

Enforcement Part 6

Clause 106

Broadcasting Services Act 1992 241

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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.

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Schedule 7 Content services

Part 6 Enforcement

Clause 108

242 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

108 Remedial directions—breach of designated content/hosting

service provider rules

(1) This clause applies if the Commissioner 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 Commissioner 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

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Content services Schedule 7

Enforcement Part 6

Clause 109

Broadcasting Services Act 1992 243

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

the offence or any later day) during which the contravention

continues.

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 Commissioner may issue a formal warning to a person if the

Commissioner 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 Commissioner 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 Commissioner 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.

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Schedule 7 Content services

Part 7 Protection from civil and criminal proceedings

Clause 111

244 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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—Commissioner,

Classification Board and Classification Review Board

(1) For the purposes of this clause, each of the following is a protected

person:

(a) the Commissioner;

(c) a member of the staff of the ACMA;

(d) a consultant engaged under section 69 of the Enhancing

Online Safety Act 2015;

(e) an officer or employee whose services are made available to

the ACMA under paragraph 55(1)(a) of the Australian

Communications and Media Authority Act 2005;

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Protection from civil and criminal proceedings Part 7

Clause 112

Broadcasting Services Act 1992 245

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(f) a member or temporary member of the Classification Board;

(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 Commissioner, 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.

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Schedule 7 Content services

Part 8 Review of decisions

Clause 113

246 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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 Commissioner:

(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 Commissioner:

(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;

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Review of decisions Part 8

Clause 113

Broadcasting Services Act 1992 247

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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 Commissioner:

(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 Commissioner 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 Commissioner under

clause 89 to:

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Part 8 Review of decisions

Clause 113

248 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

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 Commissioner:

(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.

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Miscellaneous Part 9

Clause 114

Broadcasting Services Act 1992 249

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Part 9—Miscellaneous

114 Additional Commissioner functions

The Commissioner 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 himself or herself 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 Commissioner 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

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Part 9 Miscellaneous

Clause 116

250 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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:

(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 Commissioner 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 Commissioner does not infringe copyright if the

Commissioner does anything authorised by subclause (1) or (2).

116 Samples of content to be submitted for classification

The Commissioner 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:

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Miscellaneous Part 9

Clause 117A

Broadcasting Services Act 1992 251

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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.

(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).

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.

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.

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Part 9 Miscellaneous

Clause 122

252 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

(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

or the Australian Capital Territory.

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Endnotes

Endnote 1—About the endnotes

Broadcasting Services Act 1992 253

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key 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 (or will amend) the compiled law. The information includes

commencement details for amending laws and details of any 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 (generally section or equivalent) level. It also includes information

about any provision of the compiled law that has been repealed in accordance

with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make

editorial and presentational changes to a compiled law in preparing a

compilation of the law for registration. The changes must not change the effect

of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief

outline of the changes in general terms. Full details of any changes can be

obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe

the amendment to be made. If, despite the misdescription, the amendment can

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Endnotes

Endnote 1—About the endnotes

254 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

be given effect as intended, the amendment is incorporated into the compiled

law and the abbreviation “(md)” added to the details of the amendment included

in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the

abbreviation “(md not incorp)” is added to the details of the amendment

included in the amendment history.

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Endnotes

Endnote 2—Abbreviation key

Broadcasting Services Act 1992 255

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Endnote 2—Abbreviation key

ad = added or inserted o = order(s)

am = amended Ord = Ordinance

amdt = amendment orig = original

c = clause(s) par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x /sub-subparagraph(s)

Ch = Chapter(s) pres = present

def = definition(s) prev = previous

Dict = Dictionary (prev…) = previously

disallowed = disallowed by Parliament Pt = Part(s)

Div = Division(s) r = regulation(s)/rule(s)

ed = editorial change reloc = relocated

exp = expires/expired or ceases/ceased to have renum = renumbered

effect rep = repealed

F = Federal Register of Legislation rs = repealed and substituted

gaz = gazette s = section(s)/subsection(s)

LA = Legislation Act 2003 Sch = Schedule(s)

LIA = Legislative Instruments Act 2003 Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given SLI = Select Legislative Instrument

effect SR = Statutory Rules

(md not incorp) = misdescribed amendment Sub-Ch = Sub-Chapter(s)

cannot be given effect SubPt = Subpart(s)

mod = modified/modification underlining = whole or part not

No. = Number(s) commenced or to be commenced

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Endnotes

Endnote 3—Legislation history

256 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

Act No 105,

1992

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)

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Endnotes

Endnote 3—Legislation history

Broadcasting Services Act 1992 257

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Competition Policy

Reform Act 1995

88, 1995 20 July 1995 s. 77: 6 Nov 1995 (see

Gazette 1995, No.

S423) (d)

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)

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Endnote 3—Legislation history

258 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

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 —

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)

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Endnotes

Endnote 3—Legislation history

Broadcasting Services Act 1992 259

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

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 Sch 2 (items 126, 127,

418, 419): 24 May

2001 (s 2(3))

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)

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 s 4–14 and Sch 3

(items 88–93): 15 July

2001 (s 2(1), (3))

s 4–14

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Endnotes

Endnote 3—Legislation history

260 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

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)

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)

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Endnotes

Endnote 3—Legislation history

Broadcasting Services Act 1992 261

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

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 Sch 1 (items 6–58),

Sch 2 and Sch 4:

1 July 2005 (s 2(1)

items 2, 3, 10)

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)

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)

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Endnote 3—Legislation history

262 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

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 Sch 2 (item 2): 4 May

2007 (s 2(1) item 45)

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

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Endnotes

Endnote 3—Legislation history

Broadcasting Services Act 1992 263

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

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)

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 Sch 1 (items 15, 16):

3 July 2008 (s 2(1)

item 10)

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)

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Endnotes

Endnote 3—Legislation history

264 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

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

Statute Law Revision

Act 2010

8, 2010 1 Mar 2010 Sch 1 (item 5) and

Sch 5 (items 15–26,

137, 138): 1 Mar 2010

(s 2(1) items 2, 31, 38)

Sch 5

(item 138)

Broadcasting Legislation

Amendment (Digital

Television) Act 2010

94, 2010 29 June 2010 Sch 1 (items 1–134):

30 June 2010 (s 2(1)

item 2)

Sch 1

(item 134)

as amended by

Statute Law Revision

Act 2011

5, 2011 22 Mar 2011 Sch 2 (item 1):

30 June 2010 (s 2(1)

item 3)

Trade Practices

Amendment (Australian

Consumer Law) Act

(No. 2) 2010

103, 2010 13 July 2010 Sch 6 (items 1, 40–

48): 1 Jan 2011 (s 2(1)

items 3–5)

Statute Law Revision

Act 2011

5, 2011 22 Mar 2011 Sch 1 (item 10): 22

Mar 2011 (s 2(1)

item 2)

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

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Endnotes

Endnote 3—Legislation history

Broadcasting Services Act 1992 265

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

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)

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

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Endnotes

Endnote 3—Legislation history

266 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Australian Charities and

Not-for-profits

Commission

(Consequential and

Transitional) Act 2012

169, 2012 3 Dec 2012 Sch 2 (items 153,

154): 3 Dec 2012 (s

2(1))

Sch 4 (item 12): never

commenced (s 2(1)

item 14)

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)

Statute Law Revision

Act (No. 1) 2014

31, 2014 27 May 2014 Sch 1 (item 9), Sch 4

(items 11–23, 61) and

Sch 8 (item 9):

24 June 2014

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Endnotes

Endnote 3—Legislation history

Broadcasting Services Act 1992 267

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Classification

(Publications, Films and

Computer Games)

Amendment

(Classification Tools and

Other Measures) Act

2014

99, 2014 11 Sept 2014 Sch 6 (items 29–40):

12 Sept 2014 (s 2(1)

item 8)

Sch 6

(items 31–40)

Omnibus Repeal Day

(Autumn 2014) Act 2014

109, 2014 16 Oct 2014 Sch 2 (items 6–16, 24,

83–85, 106–111, 182,

183, 208–224): 17 Oct

2014 (s 2(1) item 2)

Sch 2 (items 24,

214, 216, 218)

Statute Law Revision

Act (No. 1) 2015

5, 2015 25 Feb 2015 Sch 1 (item 9), Sch 5

(items 1, 2): 25 Mar

2015 (s 2(1) items 2,

10)

Acts and Instruments

(Framework Reform)

Act 2015

10, 2015 5 Mar 2015 Sch 3 (items 15–66): 5

Mar 2016 (s 2(1)

item 2)

Sch 3

(items 348, 349)

Broadcasting and Other

Legislation Amendment

(Deregulation) Act 2015

22, 2015 19 Mar 2015 Sch 1 (items 2–9) and

Sch 3–9: 20 Mar 2015

(s 2(1) items 2, 4)

Sch 2 (items 2–133,

164, 165): 19 Mar

2015 (s 2(1) item 3)

Sch 2

(items 164,

165), Sch 3

(item 5), Sch 5

(item 4), Sch 6

(items 17, 18)

and Sch 8

(item 3)

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Endnotes

Endnote 3—Legislation history

268 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

as amended by

Statute Law Revision

Act (No. 1) 2016

4, 2016 11 Feb 2016 Sch 2 (items 1, 2): 20

Mar 2015 (s 2(1)

item 3)

Enhancing Online Safety

for Children

(Consequential

Amendments) Act 2015

25, 2015 24 Mar 2015 Sch 1 and Sch 3:

1 July 2015 (s 2(1)

items 2, 3, 6)

Sch 3

Norfolk Island

Legislation Amendment

Act 2015

59, 2015 26 May 2015 Sch 2 (items 77, 78):

1 July 2016 (s 2(1)

item 5)

Sch 2 (items 356–

396): 18 June 2015 (s

2(1) item 6)

Sch 2

(items 356–396)

as amended by

Territories Legislation

Amendment Act 2016

33, 2016 23 Mar 2016 Sch 2: 24 Mar 2016 (s

2(1) item 2)

Acts and Instruments

(Framework Reform)

(Consequential

Provisions) Act 2015

126, 2015 10 Sept 2015 Sch 1 (items 82–93): 5

Mar 2016 (s 2(1)

item 2)

Broadcasting Legislation

Amendment (Primary

Television Broadcasting

Service) Act 2015

127, 2015 16 Sept 2015 17 Sept 2015 (s 2(1)

item 1)

Sch 1 (item 28)

Statute Law Revision

Act (No. 1) 2016

4, 2016 11 Feb 2016 Sch 4 (items 1, 34–

42): 10 Mar 2016 (s

2(1) item 6)

Broadcasting Legislation

Amendment (Digital

Radio) Act 2016

14, 2016 29 Feb 2016 Sch 1 (items 1–43),

Sch 2, Sch 3 (items 1–

7) and Sch 5 (item 1):

1 Mar 2016 (s 2(1)

item 1)

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Endnote 3—Legislation history

Broadcasting Services Act 1992 269

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Act Number

and year

Assent Commencement Application,

saving and

transitional

provisions

Territories Legislation

Amendment Act 2016

33, 2016 23 Mar 2016 Sch 5 (item 21): 1 July

2016 (s 2(1) item 7)

Enhancing Online Safety

for Children Amendment

Act 2017

51, 2017 22 June 2017 Sch 1 (items 30–32,

48, 49, 51): 23 June

2017 (s 2(1) item 1)

Sch 1 (items 48,

49, 51)

(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

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Endnotes

Endnote 3—Legislation history

270 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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:

(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.

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Endnote 3—Legislation history

Broadcasting Services Act 1992 271

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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).

(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.

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Endnotes

Endnote 4—Amendment history

272 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

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

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, 2000; No 137, 2000; No 172, 2000;

No 120, 2002; No 45, 2005; Nos 120, 2006; 128, 2006; No 129, 2006;

Nos 68, 2007; No 124, 2007; Nos 144, 2008; No 158, 2008; No 94,

2010; Nos 36, 2011; No 46, 2011; Nos 34, 2012; No 169, 2012; No 13,

2013; No 31, 2014; No 109, 2014; No 5, 2015; No 10, 2015; No 22,

2015; No 25, 2015; No 14, 2016; No 51, 2017

s 7 ..................................................am No 108, 2000

s 8A................................................ad No 108, 2000

s 8AA.............................................ad No 68, 2007

s 8AB.............................................ad No 68, 2007

s 8AC.............................................ad No 68, 2007

am No 114, 2008; No 8, 2010; No 14, 2016

s 8AD.............................................ad No 68, 2007

s 8AE .............................................ad No 94, 2010

rep No 22, 2015

s 8AF .............................................ad No 34, 2012

s 8B................................................ad No 120, 2002

am No 45, 2005; No 103, 2013

s 10AA...........................................ad No 33, 2016

s 10A..............................................ad No 5, 2001

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Endnote 4—Amendment history

Broadcasting Services Act 1992 273

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

Part 2

s 11 ................................................am No 172, 2000

s 11A..............................................ad No 172, 2000

s 12 ................................................am No 172, 2000

s 13 ................................................am No 10, 2015

s 14 ................................................am No 94, 2010

s 17 ................................................am No 216, 1992

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

s 19 ................................................am No 172, 2000; No 45, 2005; No 10, 2015

s 20 ................................................rep No 10, 2015

s 21 ................................................am No 172, 2000; No 45, 2005

s 22 ................................................am No 45, 2005

Part 3

s 23 ................................................am No 45, 2005

s 24 ................................................am No 45, 2005

rep No 22, 2015

s 25 ................................................am No 167, 1992; No 45, 2005; No 68, 2007

rep No 22, 2015

s 26 ................................................am No 45, 2005; No 128, 2006; No 68, 2007; No 36, 2011; No 29,

2013; No 22, 2015

s 26A..............................................ad No 128, 2006

am No 128, 2006; No 36, 2011

rep No 22, 2015

s 26AA...........................................ad No 36, 2011

s 26B..............................................ad No 128, 2006

am No 128, 2006; No 36, 2011

rep No 22, 2015

s 26C..............................................ad No 68, 2007

am No 14, 2016

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Endnote 4—Amendment history

274 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

s 26D..............................................ad No 68, 2007

s 27 ................................................am No 45, 2005; No 36, 2011

rep No 22, 2015

s 28 ................................................rs No 99, 1998

am No 108, 2000; No 45, 2005

rep No 128, 2006

s 28A..............................................ad No 99, 1998

am No 108, 2000

rep No 128, 2006

s 29 ................................................am No 119, 1997; No 45, 2005; No 94, 2010; No 36, 2011

s 30 ................................................am No 45, 2005

s 31 ................................................am No 119, 1997; No 45, 2005; No 10, 2015

s 32 ................................................rep No 10, 2015

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

rep No 22, 2015

s 35A..............................................ad No 128, 2006

am No 158, 2008

rs No 177, 2011

rep No 29, 2013

Part 4

Division 1

Division 1 heading.........................ad No 94, 2010

s 35B..............................................ad No 128, 2006

rep No 29, 2013

s 35C..............................................ad No 68, 2007

rep No 14, 2016

s 35D..............................................ad No 68, 2007

am No 8, 2010

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Broadcasting Services Act 1992 275

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

rep No 14, 2016

s 36 ................................................am No 45, 2005; No 128, 2006

s 36A..............................................ad No 68, 2007

am No 14, 2016

s 37 ................................................am No 45, 2005; No 94, 2010

s 37A..............................................ad No 29, 2013

s 38 ................................................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; No 22, 2015

s 38B..............................................ad No 108, 2000

am No 92, 2001; No 108, 2003; No 45, 2005; Nos 127 and 128, 2006;

No 94, 2010; No 10, 2015; No 22, 2015

s 38C..............................................ad No 94, 2010

am No 88, 2012; No 136, 2012; No 22, 2015

s 39 ................................................rs No 139, 1995

am No 45, 2005; No 22, 2015

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

Division 2 heading.........................ad No 94, 2010

s 41A..............................................ad No 128, 2006

rep No 22, 2015

s 41B..............................................ad No 128, 2006

am No 94, 2010; No 36, 2011

rep No 22, 2015

s 41C..............................................ad No 128, 2006

am No 94, 2010

rs No 22, 2015

s 41CA...........................................ad No 94, 2010

am No 88, 2012; No 22, 2015; No 127, 2015

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Endnote 4—Amendment history

276 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

s 41D..............................................ad No 68, 2007

am No 14, 2016

Division 3

Division 3 heading.........................ad No 94, 2010

s 42 ................................................am No 94, 2010

s 43 ................................................am No 45, 2005

s 43A..............................................ad No 129, 2006

s 43AA...........................................ad No 94, 2010

am No 36, 2011; No 22, 2015

s 43AB...........................................ad No 94, 2010

am No 22, 2015

s 43AC...........................................ad No 94, 2010

am No 36, 2011; No 22, 2015

s 43AD...........................................ad No 94, 2010

s 43B..............................................ad No 129, 2006

am No 34, 2012

rep No 34, 2012

s 43C..............................................ad No 129, 2006

am No 34, 2012; No 109, 2014; No 22, 2015

s 43D..............................................ad No 68, 2007

s 44 ................................................am No 45, 2005

Division 4

Division 4 heading.........................ad No 94, 2010

s 45 ................................................am No 94, 2010

s 46 ................................................am No 45, 2005

s 47 ................................................am No 45, 2005

s 49 ................................................am No 45, 2005

Part 5

Part 5 heading ................................rs No 108, 2000

Division 1

s 50A..............................................ad No 129, 2006

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Endnote 4—Amendment history

Broadcasting Services Act 1992 277

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 94, 2010

s 51A..............................................ad No 128, 2006

s 52 ................................................am No 45, 2005; No 22, 2015

s 52A..............................................ad No 129, 2006

Division 2

Subdivision A

Subdivision A heading...................ad No 108, 2000

Subdivision B

Subdivision B ................................ad No 108, 2000

s 54A..............................................ad No 108, 2000

Subdivision C ................................ad No 68, 2007

rep No 14, 2016

s 54B..............................................ad No 68, 2007

rep No 14, 2016

Division 3

Subdivision A

Subdivision A heading...................ad No 108, 2000

Subdivision B

Subdivision B ................................ad No 108, 2000

s 56A..............................................ad No 108, 2000

Division 4 ......................................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

Division 5 heading.........................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

Division 5A....................................ad No 129, 2006

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Endnote 4—Amendment history

278 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

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; No 22, 2015

s 61AD...........................................ad No 129, 2006

s 61AE ...........................................ad No 129, 2006

am No 22, 2015

s 61AEA ........................................ad No 129, 2006

s 61AF ...........................................ad No 129, 2006

Subdivision B

s 61AG...........................................ad No 129, 2006

s 61AH...........................................ad No 129, 2006

s 61AJ ............................................ad No 129, 2006

s 61AK...........................................ad No 129, 2006

s 61AL ...........................................ad No 129, 2006

s 61AM ..........................................ad No 129, 2006

Subdivision BA

s 61AMA .......................................ad No 129, 2006

s 61AMB .......................................ad No 129, 2006

s 61AMC .......................................ad No 129, 2006

s 61AMD .......................................ad No 129, 2006

s 61AME........................................ad No 129, 2006

Subdivision C

s 61AN...........................................ad No 129, 2006

s 61ANA........................................ad No 129, 2006

s 61AP ...........................................ad No 129, 2006

s 61AQ...........................................ad No 129, 2006

s 61AR...........................................ad No 129, 2006

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Broadcasting Services Act 1992 279

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

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

s 61AV...........................................ad No 129, 2006

s 61AW..........................................ad No 129, 2006

s 61AX...........................................ad No 129, 2006

s 61AY...........................................ad No 129, 2006

s 61AZ ...........................................ad No 129, 2006

s 61AZA ........................................ad No 129, 2006

s 61AZB.........................................ad No 129, 2006

s 61AZC.........................................ad No 129, 2006

s 61AZCA......................................ad No 129, 2006

s 61AZD ........................................ad No 129, 2006

s 61AZE.........................................ad No 129, 2006

s 61AZF.........................................ad No 129, 2006

s 61AZG ........................................ad No 129, 2006

s 61AZH ........................................ad No 129, 2006

Division 5B

Division 5B....................................ad No 129, 2006

s 61BA...........................................ad No 129, 2006

s 61BB ...........................................ad No 129, 2006

s 61BC ...........................................ad No 129, 2006

am No 8, 2010

s 61BD...........................................ad No 129, 2006

s 61BE ...........................................ad No 129, 2006

s 61BF............................................ad No 129, 2006

am No 4, 2016

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Endnote 4—Amendment history

280 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

s 61BG...........................................ad No 129, 2006

s 61BH...........................................ad No 129, 2006

Division 5C

Division 5C....................................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

Subdivision B

s 61CD...........................................ad No 129, 2006

am No 34, 2012

s 61CE ...........................................ad No 129, 2006

Subdivision C

s 61CF............................................ad No 129, 2006

s 61CG...........................................ad No 129, 2006

s 61CH...........................................ad No 129, 2006

s 61CJ ............................................ad No 129, 2006

am No 8, 2010

s 61CK...........................................ad No 129, 2006

s 61CL ...........................................ad No 129, 2006

s 61CM ..........................................ad No 129, 2006

s 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

s 61CR ...........................................ad No 129, 2006

s 61CS............................................ad No 129, 2006

s 61CT ...........................................ad No 129, 2006

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Endnote 4—Amendment history

Broadcasting Services Act 1992 281

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

Division 6

s 62 ................................................am No 32, 1995; No 108, 2000; No 45, 2005; No 129, 2006; No 68,

2007; No 109, 2014

rep No 22, 2015

s 63 ................................................am No 32, 1995; No 108, 2000; No 45, 2005; No 129, 2006; No 68,

2007; No 109, 2014; No 22, 2015; No 14, 2016

s 64 ................................................am No 32, 1995; No 108, 2000; No 45, 2005; No 129, 2006; No 68,

2007; No 109, 2014; No 22, 2015; No 14, 2016

s 65 ................................................am No 32, 1995; No 45, 2005

rs No 129, 2006

rep No 109, 2014

s 65A..............................................ad No 120, 2006

am No 109, 2014; No 22, 2015

s 65B..............................................ad No 120, 2006

am No 109, 2014; No 22, 2015

Division 7

s 66 ................................................am No 32, 1995; No 108, 2000; No 5, 2001; No 45, 2005; No 129,

2006; No 4, 2016

s 67 ................................................am No 45, 2005; No 129, 2006

s 68 ................................................am No 45, 2005

s 69 ................................................am No 32, 1995; No 108, 2000; No 4, 2016

Division 8

Division 8 heading.........................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; No 4, 2016

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

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Endnote 4—Amendment history

282 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

Division 10

Division 10 heading .......................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

s 77 ................................................am No 103, 2010

Part 6

s 79A..............................................ad No 119, 1997

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

s 84 ................................................am No 45, 2005

s 84A..............................................ad No 68, 2007

s 85 ................................................am No 45, 2005

s 85A..............................................ad No 68, 2007

s 86 ................................................am No 120, 2002

s 87 ................................................am No 120, 2002; No 45, 2005

s 87A..............................................ad No 120, 2002

am No 45, 2005; No 10, 2015

s 87B..............................................ad No 68, 2007

s 88 ................................................am No 45, 2005

s 89 ................................................am No 72, 2008

s 90 ................................................am No 120, 2002; No 45, 2005; No 72, 2008

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

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Endnote 4—Amendment history

Broadcasting Services Act 1992 283

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

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

s 92H..............................................ad No 119, 1997

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

s 97 ................................................ad No 171, 1992

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Endnote 4—Amendment history

284 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 88, 1995; No 45, 2005; No 8, 2010; 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

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; No 22, 2015

ss 103C–103G................................ad No 198, 1999

s 103H............................................ad No 198, 1999

am No 71, 2006

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Endnotes

Endnote 4—Amendment history

Broadcasting Services Act 1992 285

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

s 103J.............................................ad No 198, 1999

am No 71, 2006

s 103JA..........................................ad No 71, 2006

s 103K............................................ad No 198, 1999

s 103L............................................ad No 198, 1999

am No 45, 2005; No 71, 2006; No 126, 2015

ed C83

s 103M...........................................ad No 198, 1999

am No 71, 2006

Subdivision B

s 103N............................................ad No 198, 1999

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

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

s 103UA.........................................ad No 71, 2006

ss 103V, 103W...............................ad No 198, 1999

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Endnote 4—Amendment history

286 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 71, 2006

Subdivision F

s 103X............................................ad No 198, 1999

am No 71, 2006

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

s 103ZA .........................................ad No 198, 1999

am No 45, 2005; No 22, 2015; No 4, 2016

s 103ZB .........................................ad No 198, 1999

am No 45, 2005; No 22, 2015; No 4, 2016

s 103ZC .........................................ad No 198, 1999

am No 45, 2005

s 103ZD .........................................ad No 198, 1999

Subdivision I..................................rep No 22, 2015

s 103ZE..........................................ad No 198, 1999

am No 45, 2005; No 71, 2006

rep No 22, 2015

s 103ZF..........................................ad No 198, 1999

am No 45, 2005

rep No 22, 2015

Subdivision J

s 103ZG .........................................ad No 198, 1999

am No 45, 2005

s 103ZH .........................................ad No 198, 1999

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Endnote 4—Amendment history

Broadcasting Services Act 1992 287

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

s 103ZJ...........................................ad No 198, 1999

rep No 109, 2014

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

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; No 10, 2015

s 115A............................................ad No 128, 2006

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Endnotes

Endnote 4—Amendment history

288 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

rep No 109, 2014

s 116 ..............................................ad No 171, 1992

am No 139, 1995; No 111, 2009

s 116A............................................ad No 171, 1992

s 116B............................................ad No 171, 1992

am No 103, 2010

s 116C............................................ad No 171, 1992

rep No 111, 2009

Part 8

s 117 ..............................................am No 45, 2005; No 10, 2015

s 118 ..............................................am No 45, 2005

s 119 ..............................................am No 45, 2005; No 27, 2007

s 120 ..............................................am No 45, 2005; No 109, 2014; No 10, 2015

s 121 ..............................................rep No 10, 2015

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

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

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Endnote 4—Amendment history

Broadcasting Services Act 1992 289

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

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

am No 120, 2006; No 4, 2016

s 121FH .........................................ad No 172, 2000

am No 5, 2001; No 45, 2005

rs No 120, 2006

s 121FHA.......................................ad No 120, 2006

s 121FHB.......................................ad No 120, 2006

s 121FJ...........................................ad No 172, 2000

am No 5, 2001; No 4, 2016

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

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Endnote 4—Amendment history

290 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

s 121FLF........................................ad No 172, 2000

am No 5, 2001; No 4, 2016

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

Division 5 heading.........................am No 45, 2005

ss 121FM, 121FN ..........................ad No 172, 2000

am No 45, 2005

Division 6

s 121FP ..........................................ad No 172, 2000

am No 45, 2005; No 10, 2015

s 121FQ .........................................ad No 172, 2000

am No 45, 2005

s 121FR..........................................ad No 172, 2000

am No 45, 2005

s 121FS ..........................................ad No 172, 2000

am No 13, 2013

Part 9

Part 9 heading ................................rs No 29, 2013

s 121G............................................ad No 29, 2013

am No 22, 2015; No 126, 2015

s 122 ..............................................am No 120, 2002; No 120, 2004; No 45, 2005; No 128, 2006; No 94,

2010; No 29, 2013; No 126, 2015

s 123 ..............................................am No 216, 1992; No 180, 1997; No 120, 2002; No 61, 2004; No 45,

2005; No 128, 2006; Nos 27, 2007; No 68, 2007; No 83, 2012; No 98,

2013

s 123A............................................ad No 216, 1992

am No 180, 1997; No 45, 2005

rep No 22, 2015

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Endnotes

Endnote 4—Amendment history

Broadcasting Services Act 1992 291

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

s 123B............................................ad No 94, 2010

s 124 ..............................................am No 45, 2005

ss 125–127 .....................................am No 45, 2005

s 128 ..............................................rs No 171, 1992

s 129 ..............................................am No 45, 2005

s 130 ..............................................am No 103, 2010

Part 9A

Part 9A...........................................ad No 128, 2006

s 130A............................................ad No 128, 2006

am No 68, 2007; No 22, 2015; No 14, 2016

s 130AA.........................................ad No 68, 2007

am No 14, 2016

s 130AB.........................................ad No 68, 2007

s 130AC.........................................ad No 94, 2010

s 130B............................................ad No 128, 2006

am No 68, 2007; No 103, 2010; No 126, 2015

s 130BA.........................................ad No 68, 2007

am No 103, 2010; No 126, 2015; No 14, 2016

s 130BB .........................................ad No 94, 2010

am No 103, 2010; No 126, 2015

Part 9B

Part 9B...........................................ad No 128, 2006

Division 1

s 130C............................................ad No 128, 2006

Division 2

s 130D............................................ad No 128, 2006

s 130E ............................................ad No 128, 2006

s 130F ............................................ad No 128, 2006

am No 68, 2007; No 103, 2010; No 14, 2016

s 130G............................................ad No 128, 2006

s 130H............................................ad No 128, 2006

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Endnote 4—Amendment history

292 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

Division 3

s 130J.............................................ad No 128, 2006

s 130K............................................ad No 128, 2006

s 130L............................................ad No 128, 2006

am No 68, 2007; No 124, 2007; No 22, 2015

Division 4

s 130M...........................................ad No 128, 2006

s 130N............................................ad No 128, 2006

s 130P ............................................ad No 128, 2006

s 130Q............................................ad No 128, 2006

Division 5

s 130R............................................ad No 128, 2006

s 130S ............................................ad No 128, 2006

s 130T............................................ad No 128, 2006

s 130U............................................ad No 128, 2006

s 130V............................................ad No 128, 2006

s 130W...........................................ad No 128, 2006

s 130X............................................ad No 128, 2006

s 130Y............................................ad No 128, 2006

s 130Z............................................ad No 128, 2006

rep No 109, 2014

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

s 130ZB .........................................ad No 94, 2010

am No 36, 2011; No 88, 2012; No 22, 2015

s 130ZBB.......................................ad No 36, 2011

am No 88, 2012; No 22, 2015

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Endnote 4—Amendment history

Broadcasting Services Act 1992 293

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

s 130ZBC.......................................ad No 88, 2012

rep No 22, 2015

s 130ZC .........................................ad No 94, 2010

am No 36, 2011

s 130ZCAA....................................ad No 94, 2010

am No 36, 2011

s 130ZCAB....................................ad No 94, 2010

am No 36, 2011

s 130ZCA.......................................ad No 94, 2010

am No 36, 2011

s 130ZD .........................................ad No 94, 2010

s 130ZE..........................................ad No 94, 2010

s 130ZEA.......................................ad No 36, 2011

rep No 22, 2015

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

am No 22, 2015

Part 9D

Part 9D...........................................ad No 83, 2012

Division 1

s 130ZJ...........................................ad No 83, 2012

s 130ZK .........................................ad No 83, 2012

am No 22, 2015

s 130ZKA ......................................ad No 22, 2015

s 130ZKB.......................................ad No 22, 2015

s 130ZKC.......................................ad No 22, 2015

s 130ZL..........................................ad No 83, 2012

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Endnote 4—Amendment history

294 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

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

am No 22, 2015

s 130ZS..........................................ad No 83, 2012

s 130ZT..........................................ad No 83, 2012

rep No 5, 2015

s 130ZU .........................................ad No 83, 2012

rep No 5, 2015

s 130ZUA ......................................ad No 83, 2012

am No 22, 2015

s 130ZUAA....................................ad No 83, 2012

am No 5, 2015

s 130ZUB.......................................ad No 83, 2012

Division 3

s 130ZV .........................................ad No 83, 2012

am No 22, 2015

s 130ZVA ......................................ad No 83, 2012

am No 103, 2013; No 22, 2015

s 130ZW ........................................ad No 83, 2012

am No 103, 2013

s 130ZX .........................................ad No 83, 2012

s 130ZY .........................................ad No 83, 2012

am No 22, 2015

s 130ZYA ......................................ad No 83, 2012

am No 22, 2015

s 130ZZ..........................................ad No 83, 2012

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Endnote 4—Amendment history

Broadcasting Services Act 1992 295

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 22, 2015

s 130ZZAA....................................ad No 83, 2012

s 130ZZAB ....................................ad No 83, 2012

Division 4

s 130ZZA.......................................ad No 83, 2012

am No 22, 2015

Division 5

s 130ZZB .......................................ad No 83, 2012

Division 6

s 130ZZC .......................................ad No 83, 2012

s 130ZZD.......................................ad No 83, 2012

rs No 22, 2015

Division 7

s 130ZZE .......................................ad No 83, 2012

am No 22, 2015

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

s 136 ..............................................am No 4, 2016

Division 1A

Division 1A....................................ad No 120, 2006

s 136A............................................ad No 120, 2006

s 136B............................................ad No 120, 2006

s 136C............................................ad No 120, 2006

s 136D............................................ad No 120, 2006

s 136E ............................................ad No 120, 2006

s 136F ............................................ad No 120, 2006

Division 2

Division 2 heading.........................am No 45, 2005

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Endnote 4—Amendment history

296 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

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; No 4, 2016

s 140 ..............................................am No 4, 2016

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

Division 5 ......................................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

am No 10, 2015

s 146B............................................ad No 197, 1999

am No 55, 2001; No 128, 2006

s 146C............................................ad No 197, 1999

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Endnote 4—Amendment history

Broadcasting Services Act 1992 297

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 46, 2011; No 10, 2015; No 126, 2015

s 146CA.........................................ad No 197, 1999

am No 46, 2011; No 10, 2015; No 126, 2015

s 146D............................................ad No 197, 1999

am No 45, 2005

Division 2

s 146E ............................................ad No 197, 1999

s 146F ............................................ad No 197, 1999

s 146G............................................ad No 197, 1999

s 146H............................................ad No 197, 1999

s 146J.............................................ad No 197, 1999

s 146K............................................ad No 197, 1999

s 146KA.........................................ad No 197, 1999

Division 3

s 146L............................................ad No 197, 1999

s 146N............................................ad No 197, 1999

s 146P ............................................ad No 197, 1999

s 146Q............................................ad No 197, 1999

s 146R............................................ad No 197, 1999

Division 4 ......................................rep No 109, 2014

s 146S ............................................ad No 197, 1999

rep No 109, 2014

Part 11

Part 11 heading ..............................am No 45, 2005

Division 1

s 147 ..............................................am No 45, 2005; No 120, 2006

s 148 ..............................................am No 45, 2005

s 149 ..............................................am No 45, 2005; No 120, 2006

rs No 109, 2014

Division 2

Division 2 heading.........................rs No 23, 2001

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Endnote 4—Amendment history

298 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

s 150 ..............................................am No 23, 2001; No 45, 2005; No 83, 2012

s 151 ..............................................am No 23, 2001; No 45, 2005

rs No 109, 2014

s 152 ..............................................am No 45, 2005; No 109, 2014

s 153 ..............................................am No 45, 2005

Part 12............................................rep No 45, 2005

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

s 166 ..............................................rep No 45, 2005

s 167 ..............................................rep No 45, 2005

Part 13

Part 13 heading ..............................am No 45, 2005

rs No 25, 2015

Division 1

s 168 ..............................................am No 45, 2005

s 169 ..............................................am No 45, 2005

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Endnote 4—Amendment history

Broadcasting Services Act 1992 299

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

s 169A............................................ad No 25, 2015

am No 51, 2017

Division 2

s 170 ..............................................am No 45, 2005

s 171 ..............................................rs No 115, 1997

am No 59, 1997; No 45, 2005

s 172 ..............................................am No 115, 1997; No 45, 2005

s 173 ..............................................am No 45, 2005; No 25, 2015

s 174 ..............................................am No 45, 2005; No 25, 2015

s 176 ..............................................am No 45, 2005; No 25, 2015

s 177 ..............................................am No 45, 2005; No 25, 2015

s 178 ..............................................am No 45, 2005

s 179 ..............................................am No 45, 2005

s 180 ..............................................am No 45, 2005

Division 3

s 181 ..............................................rep No 45, 2005

s 182 ..............................................am No 45, 2005

ss 183, 184 .....................................am No 45, 2005

ss 185–190 .....................................am No 45, 2005

ss 191–196 .....................................am No 45, 2005

ss 197–199 .....................................am No 45, 2005

Division 4

s 200 ..............................................am No 45, 2005; No 25, 2015

s 202 ..............................................am No 216, 1992; No 108, 2000; No 5, 2001; No 120, 2006

s 203 ..............................................am No 45, 2005

Part 14

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; No 22, 2015; No 14,

2016

s 205 ..............................................am No 45, 2005

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Endnote 4—Amendment history

300 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

Part 14A

Part 14A.........................................ad No 143, 1997

s 205A............................................ad No 143, 1997

am No 153, 2006

s 205B............................................ad No 143, 1997

am No 45, 2005; No 120, 2006; No 128, 2006; No 153, 2006; No 109,

2014

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

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Endnote 4—Amendment history

Broadcasting Services Act 1992 301

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

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

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

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 211 ..............................................am No 31, 2014

rep No 22, 2015

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

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Endnote 4—Amendment history

302 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

s 212B............................................ad No 197, 1999

am No 46, 2011; No 10, 2015; No 126, 2015

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

am No 126, 2015

s 215A............................................ad No 68, 2007

rep No 51, 2013

s 215B............................................ad No 68, 2007

rep No 14, 2016

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, 2000; No 172, 2000; No 45, 2005; No 68,

2007; No 14, 2016

Part 2

c 2 ..................................................am No 108, 2000; No 129, 2006; No 68, 2007; No 14, 2016

c 4 ..................................................am No 48, 1998; Nos 108, 2000; No 172, 2000; No 121, 2001; No 45,

2005; No 68, 2007; No 14, 2016

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Endnotes

Endnote 4—Amendment history

Broadcasting Services Act 1992 303

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

Part 3

c 6 ..................................................am No 139, 1995

c 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

Division 1 heading.........................ad No 94, 2010

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; No 22, 2015

Division 2

Division 2 ......................................ad No 94, 2010

c 7A ...............................................ad No 94, 2010

c 7B................................................ad No 94, 2010

am No 22, 2015

c 7C................................................ad No 94, 2010

am No 22, 2015; No 127, 2015

c 7D ...............................................ad No 94, 2010

am No 36, 2011; No 22, 2015; No 127, 2015

c 7E................................................ad No 94, 2010

am No 22, 2015; No 127, 2015

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Endnote 4—Amendment history

304 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

c 7F................................................ad No 94, 2010

am No 22, 2015; No 127, 2015

c 7G ...............................................ad No 94, 2010

am No 22, 2015; No 127, 2015

c 7H ...............................................ad No 94, 2010

rep No 22, 2015

c 7J.................................................ad No 94, 2010

c 7K ...............................................ad No 94, 2010

rep No 22, 2015

c 7L................................................ad No 94, 2010

am No 22, 2015

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

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Endnote 4—Amendment history

Broadcasting Services Act 1992 305

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

cc 13, 14.........................................rep No 152, 1997

c 15 ................................................rep No 45, 2005

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

rs No 22, 2015

c 2 ..................................................ad No 99, 1998

am No 108, 2000; No 45, 2005; Nos 127 and 128, 2006; No 158, 2008;

No 94, 2010; No 22, 2015

c 3 ..................................................ad No 99, 1998

rep No 22, 2015

c 4 ..................................................ad No 99, 1998

c 4A ...............................................ad No 108, 2000

c 4B................................................ad No 108, 2000

c 4C................................................ad No 128, 2006

am No 94, 2010

rep No 22, 2015

c 4D ...............................................ad No 128, 2006

rep No 22, 2015

c 5 ..................................................ad No 99, 1998

am No 45, 2005; No 94, 2010; No 22, 2015

c 5A ...............................................ad No 108, 2000

am No 23, 2001

rep No 128, 2006

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Endnote 4—Amendment history

306 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

ad No 128, 2006

am No 94, 2010; No 22, 2015

c 5B................................................ad No 128, 2006

am No 94, 2010

c 5C................................................ad No 128, 2006

am No 94, 2010; No 22, 2015

c 5D ...............................................ad No 128, 2006

am No 94, 2010

c 5E................................................ad No 128, 2006

rep No 22, 2015

c 5F................................................ad No 158, 2008

am No 88, 2012

rep No 22, 2015

c 5H ...............................................ad No 158, 2008

rep No 109, 2014

c 5J.................................................ad No 94, 2010

rep No 22, 2015

Part 2..............................................rep No 22, 2015

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; No

46, 2011

rep No 22, 2015

c 6A ...............................................ad No 158, 2008

am No 88, 2012

rep No 22, 2015

c 6B................................................ad No 158, 2008

rep No 22, 2015

c 6C................................................ad No 94, 2010

rep No 36, 2011

c 7 ..................................................ad No 99, 1998

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Endnote 4—Amendment history

Broadcasting Services Act 1992 307

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 45, 2005

rep No 22, 2015

c 7A ...............................................ad No 108, 2000

am No 45, 2005; No 94, 2010

rep No 22, 2015

c 7AA ............................................ad No 36, 2011

rep No 22, 2015

c 7B................................................ad No 128, 2006

rep No 22, 2015

c 8 ..................................................ad No 99, 1998

am No 108, 2000; No 45, 2005; No 128, 2006; No 36, 2011

rep No 22, 2015

c 9 ..................................................ad No 99, 1998

am No 45, 2005; No 128, 2006; No 94, 2010

rep No 22, 2015

c 9A ...............................................ad No 36, 2011

rep No 22, 2015

c 10 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

c 11 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

c 12 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

c 13 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

c 14 ................................................ad No 99, 1998

am No 45, 2005

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Endnote 4—Amendment history

308 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

rep No 22, 2015

c 15 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

c 16 ................................................ad No 99, 1998

rep No 22, 2015

c 17 ................................................ad No 99, 1998

rep No 22, 2015

c 18 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

Part 3

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; No 46, 2011

rep No 22, 2015

c 20 ................................................ad No 99, 1998

am No 108, 2000; No 108, 2003; No 45, 2005; No 128, 2006; No 36,

2011

rep No 22, 2015

c 21 ................................................ad No 99, 1998

rep No 22, 2015

c 21A .............................................ad No 36, 2011

rep No 22, 2015

c 22 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

c 22A .............................................ad No 108, 2000

am No 45, 2005

rep No 22, 2015

c 22AA...........................................ad No 36, 2011

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Endnotes

Endnote 4—Amendment history

Broadcasting Services Act 1992 309

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

rep No 22, 2015

c 23 ................................................ad No 99, 1998

am No 108, 2000; No 45, 2005; No 128, 2006; No 36, 2011

rep No 22, 2015

c 24 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

c 25 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

c 26 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

c 27 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

c 28 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

c 29 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

c 30 ................................................ad No 99, 1998

rep No 22, 2015

c 31 ................................................ad No 99, 1998

rep No 22, 2015

c 32 ................................................ad No 99, 1998

rep No 22, 2015

c 33 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

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Endnotes

Endnote 4—Amendment history

310 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

c 34 ................................................ad No 99, 1998

rep No 22, 2015

c 35 ................................................ad No 99, 1998

rs No 108, 2000

am No 128, 2006; No 158, 2008

rep No 22, 2015

c 35A .............................................ad No 94, 2010

am No 36, 2011

rep No 22, 2015

c 35AA...........................................ad No 128, 2006

rep No 22, 2015

c 35A .............................................ad No 108, 2000

rep No 128, 2006

c 36 ................................................ad No 99, 1998

am No 108, 2000; No 128, 2006; No 22, 2015

c 36A .............................................ad No 99, 1998

rep No 108, 2000

Part 3A...........................................ad No 108, 2000

rep No 128, 2006

c 36B..............................................ad No 108, 2000

rep No 128, 2006

c 36C..............................................ad No 108, 2000

rep No 128, 2006

Part 4..............................................rep No 22, 2015

Part 4 heading ................................rs No 128, 2006

rep No 22, 2015

Division 1 heading.........................ad No 108, 2000

rep No 128, 2006

Division 1 ......................................rep No 128, 2006

c 37 ................................................ad No 99, 1998

rs No 108, 2000

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Endnotes

Endnote 4—Amendment history

Broadcasting Services Act 1992 311

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

rep No 128, 2006

cc 37A–37D...................................ad No 108, 2000

rep No 128, 2006

Division 2 heading.........................rs No 128, 2006

rep No 22, 2015

Division 2 ......................................ad No 108, 2000

rep No 22, 2015

c 37DAA........................................ad No 94, 2010

rep No 22, 2015

c 37DA...........................................ad No 128, 2006

rep No 22, 2015

c 37E..............................................ad No 108, 2000

am No 23, 2001; No 126, 2002; Nos 4 and 108, 2003; No 128, 2006

rep No 22, 2015

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

rep No 22, 2015

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

rep No 22, 2015

c 37H .............................................ad No 108, 2000

am No 92, 2001; No 45, 2005; No 128, 2006

rep No 22, 2015

c 37J...............................................ad No 108, 2000

rep No 128, 2006

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Endnote 4—Amendment history

312 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

c 37K .............................................ad No 108, 2000

rep No 22, 2015

c 37L..............................................ad No 108, 2000

rs No 4, 2003

rep No 22, 2015

c 37M.............................................ad No 108, 2000

rep No 22, 2015

Division 3 heading.........................ad No 108, 2000

rs No 128, 2006

rep No 83, 2012

Division 3 ......................................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

Division 4 heading.........................ad No 108, 2000

rep No 128, 2006

Division 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.........................ad No 108, 2000

rep No 22, 2015

c 41 ................................................ad No 99, 1998

rep No 22, 2015

Part 4A

Part 4A...........................................ad No 128, 2006

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Endnotes

Endnote 4—Amendment history

Broadcasting Services Act 1992 313

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

Division 1

Division 1 ......................................ad No 128, 2006

c 41A .............................................ad No 99, 1998

rep No 108, 2000

ad No 128, 2006

am No 94, 2010

rep No 22, 2015

c 41B..............................................ad No 128, 2006

am No 94, 2010

rep No 22, 2015

c 41C..............................................ad No 128, 2006

am No 94, 2010

rep No 22, 2015

c 41D .............................................ad No 128, 2006

am No 94, 2010

rep No 22, 2015

c 41E..............................................ad No 128, 2006

am No 94, 2010; No 22, 2015; No 127, 2015

c 41F..............................................ad No 128, 2006

am No 94, 2010; No 22, 2015

rep No 127, 2015

c 41FA ...........................................ad No 94, 2010

am No 127, 2015

c 41FB ...........................................ad No 94, 2010

rep No 127, 2015

c 41G .............................................ad No 128, 2006

am No 94, 2010; No 36, 2011; No 136, 2012; No 22, 2015; No 127,

2015

Division 2

Division 2 heading.........................ad No 128, 2006

c 41H .............................................ad No 128, 2006

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Endnotes

Endnote 4—Amendment history

314 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 94, 2010

rep No 22, 2015

c 41J...............................................ad No 128, 2006

am No 94, 2010

rep No 22, 2015

c 41K .............................................ad No 128, 2006

am No 94, 2010; No 22, 2015; No 127, 2015

c 41L..............................................ad No 128, 2006

am No 94, 2010; No 22, 2015

rep No 127, 2015

c 41LA...........................................ad No 94, 2010

am No 127, 2015

c 41LB ...........................................ad No 94, 2010

rep No 127, 2015

c 41M.............................................ad No 128, 2006

am No 22, 2015; No 127, 2015

c 41N .............................................ad No 94, 2010

am No 127, 2015

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

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Endnote 4—Amendment history

Broadcasting Services Act 1992 315

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 45, 2005; No 128, 2006

c 47 ................................................ad No 99, 1998

am No 108, 2000

c 48 ................................................ad No 99, 1998

am No 108, 2000; No 22, 2015

cc 49, 50.........................................ad No 99, 1998

Part 6

c 51 ................................................ad No 99, 1998

am Nos 8 and 45, 2005; No 22, 2015

c 52 ................................................ad No 99, 1998

c 53 ................................................ad No 99, 1998

am No 108, 2000

rep No 45, 2005

Part 7..............................................rep No 22, 2015

c 54 ................................................ad No 99, 1998

am No 45, 2005

rep No 22, 2015

c 55 ................................................ad No 99, 1998

rep No 22, 2015

c 56 ................................................ad No 99, 1998

rep No 22, 2015

c 57 ................................................ad No 99, 1998

rep No 22, 2015

c 58 ................................................ad No 99, 1998

am No 31, 2014

rep No 22, 2015

c 59 ................................................ad No 99, 1998

rep No 45, 2005

c 59A .............................................ad No 108, 2000

rep No 45, 2005

c 60 ................................................ad No 99, 1998

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Endnotes

Endnote 4—Amendment history

316 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 108, 2000; No 108, 2003; No 45, 2005

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

rep No 29, 2013

Part 9 heading ................................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; No 22, 2015

c 63 ................................................ad No 99, 1998

am No 45, 2005

Part 11............................................rep No 22, 2015

c 64 ................................................ad No 99, 1998

rep No 22, 2015

Schedule 5

Schedule 5......................................ad No 90, 1999

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Endnotes

Endnote 4—Amendment history

Broadcasting Services Act 1992 317

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

Part 1

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; No 25, 2015

c 3 ..................................................ad No 90, 1999

am No 45, 2005; No 129, 2006; No 124, 2007; No 8, 2010; No 31,

2014; No 25, 2015

c 4 ..................................................ad No 90, 1999

am No 45, 2005

rep No 124, 2007

c 5 ..................................................ad No 90, 1999

am No 8, 2010

c 6 ..................................................ad No 90, 1999

am No 61, 2004

rep No 124, 2007

c 7 ..................................................ad No 90, 1999

Part 2

c 8 ..................................................ad No 90, 1999

am No 8, 2010; No 46, 2011; No 103, 2013; No 126, 2015

c 9 ..................................................ad No 90, 1999

am No 8, 2010; No 103, 2013

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

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Endnotes

Endnote 4—Amendment history

318 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

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

c 21 ................................................ad No 90, 1999

am No 13, 2001

rep No 124, 2007

Part 4

Part 4 heading ................................am No 45, 2005; No 25, 2015

Division 1

Division 1 heading.........................am No 45, 2005; No 25, 2015

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; No 25, 2015

c 24 ................................................ad No 90, 1999

am No 45, 2005; No 25, 2015

c 25 ................................................ad No 90, 1999

Division 2

Division 2 heading.........................am No 45, 2005; No 25, 2015

c 26 ................................................ad No 90, 1999

am No 45, 2005

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Endnote 4—Amendment history

Broadcasting Services Act 1992 319

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

rep No 109, 2014

c 27 ................................................ad No 90, 1999

am No 45, 2005

rs No 124, 2007

am No 8, 2010; No 109, 2014; No 25, 2015

c 28 ................................................ad No 90, 1999

am No 45, 2005; No 25, 2015

c 29 ................................................ad No 90, 1999

am No 45, 2005; No 25, 2015

Division 3 ......................................rep No 124, 2007

c 30 ................................................ad No 90, 1999

am No 61, 2004; No 45, 2005

rep No 124, 2007

c 31 ................................................ad No 90, 1999

am No 45, 2005

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 46, 2011; No 103,

2013; No 25, 2015; No 126, 2015

c 41 ................................................ad No 90, 1999

am No 45, 2005; No 124, 2007; No 8, 2010; No 25, 2015

c 42 ................................................ad No 90, 1999

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Endnote 4—Amendment history

320 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 45, 2005; No 124, 2007; No 8, 2010; No 25, 2015

c 43 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 25, 2015

c 44 ................................................ad No 90, 1999

am No 45, 2005; No 124, 2007; No 8, 2010; No 25, 2015

c 45 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 25, 2015

c 46 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 25, 2015

c 47 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 25, 2015

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

c 51 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 103, 2013; No 25, 2015

Part 5

Division 1

c 52 ................................................ad No 90, 1999

am No 45, 2005; No 124, 2007; No 8, 2010; No 25, 2015

Division 2

cc 53, 54.........................................ad No 90, 1999

c 55 ................................................ad No 90, 1999

am No 124, 2007; No 8, 2010

c 56 ................................................ad No 90, 1999

rs No 124, 2007

am No 8, 2010

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Endnotes

Endnote 4—Amendment history

Broadcasting Services Act 1992 321

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

c 57 ................................................ad No 90, 1999

am No 8, 2010

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; No 25, 2015

c 60 ................................................ad No 90, 1999

am No 45, 2005; No 124, 2007; No 8, 2010; No 46, 2011; No 31, 2014;

No 25, 2015; No 126, 2015

c 61 ................................................ad No 90, 1999

Division 4

c 62 ................................................ad No 90, 1999

am No 45, 2005; No 124, 2007; No 8, 2010; No 25, 2015

c 63 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 25, 2015

c 64 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 25, 2015

c 65 ................................................ad No 90, 1999

c 66 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 25, 2015

c 67 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 25, 2015

Division 5

c 68 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 103, 2013; No 25, 2015

c 69 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 103, 2013; No 25, 2015

c 70 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 103, 2013; No 25, 2015

c 71 ................................................ad No 90, 1999

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Endnotes

Endnote 4—Amendment history

322 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 45, 2005; No 8, 2010; No 103, 2013; No 25, 2015

c 72 ................................................ad No 90, 1999

am No 8, 2010

c 73 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 25, 2015

c 74 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 103, 2013; No 25, 2015

c 75 ................................................ad No 90, 1999

am No 45, 2005; No 103, 2013; No 25, 2015

c 76 ................................................ad No 90, 1999

am No 45, 2005

rep No 109, 2014

c 77 ................................................ad No 90, 1999

am No 45, 2005; No 25, 2015

Division 6

c 78 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 25, 2015

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; No 25,

2015

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; No 4, 2016

c 83 ................................................ad No 90, 1999

am No 5, 2001; No 45, 2005; No 124, 2007; No 8, 2010; No 25, 2015;

No 4, 2016

c 84 ................................................ad No 90, 1999

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Endnotes

Endnote 4—Amendment history

Broadcasting Services Act 1992 323

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 45, 2005; No 25, 2015

c 85 ................................................ad No 90, 1999

am No 45, 2005

rs No 124, 2007

am No 8, 2010; No 25, 2015

Part 7

c 86 ................................................ad No 90, 1999

am No 4, 2016

c 87 ................................................ad No 90, 1999

am No 5, 2001

Part 8

c 88 ................................................ad No 90, 1999

am No 124, 2007; No 8, 2010

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

c 91 ................................................ad No 90, 1999

am No 8, 2010; No 46, 2011; No 103, 2013; No 126, 2015

Part 10

c 92 ................................................ad No 90, 1999

am No 45, 2005; No 124, 2007; No 8, 2010; No 25, 2015

c 93 ................................................ad No 90, 1999

am No 45, 2005; No 25, 2015

Part 11

c 94 ................................................ad No 90, 1999

am No 45, 2005; No 8, 2010; No 25, 2015

c 95 ................................................ad No 90, 1999

am No 8, 2010

rep No 109, 2014

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Endnotes

Endnote 4—Amendment history

324 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

c 96 ................................................ad No 90, 1999

am No 59, 2015

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; No 31, 2014;

No 109, 2014; No 14, 2016

c 2 ..................................................ad No 108, 2000

am Nos 55 and 92, 2001; Nos 8 and 94, 2010; No 51, 2013; No 31,

2014; No 22, 2015

c 2A ...............................................ad No 51, 2013

c 3 ..................................................ad No 108, 2000

am No 45, 2005; No 46, 2011; No 10, 2015; No 126, 2015

c 4 ..................................................ad No 108, 2000

am No 45, 2005; No 46, 2011; No 10, 2015; No 126, 2015

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; No 14, 2016

c 8 ..................................................ad No 108, 2000

am No 45, 2005

c 9 ..................................................ad No 108, 2000

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

c 12 ................................................ad No 108, 2000

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Endnote 4—Amendment history

Broadcasting Services Act 1992 325

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 45, 2005; No 68, 2007; No 8, 2010; No 14, 2016

c 12A .............................................ad No 68, 2007

am No 8, 2010

rep No 14, 2016

Part 3

Division 1

c 13 ................................................ad No 108, 2000

am No 45, 2005; No 46, 2011; No 10, 2015; No 126, 2015

c 14 ................................................ad No 108, 2000

c 15 ................................................ad No 108, 2000

am No 92, 2001; No 45, 2005; No 46, 2011; No 10, 2015; No 126,

2015

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

rs No 31, 2014

c 20 ................................................ad No 108, 2000

am No 8, 2010; No 31, 2014

c 20AA...........................................ad No 108, 2000

am No 8, 2010

Division 1A....................................rep No 128, 2006

cc 20A, 20B ...................................ad No 108, 2000

rep No 128, 2006

Division 2

c 21 ................................................ad No 108, 2000

am No 92, 2001; No 45, 2005; No 8, 2010; No 46, 2011; No 10, 2015;

No 126, 2015

cc 22, 23.........................................ad No 108, 2000

c 23A .............................................ad No 108, 2000

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Endnotes

Endnote 4—Amendment history

326 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

Division 2A

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;

No 31, 2014; No 14, 2016

c 24A .............................................ad No 68, 2007

rep No 14, 2016

c 25 ................................................ad No 108, 2000

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; No 46, 2011; No 10, 2015; No 126, 2015

Division 4

Division 4 heading.........................am No 8, 2010

c 27A .............................................ad No 108, 2000

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

c 29 ................................................ad No 108, 2000

am No 45, 2005

rep No 22, 2015

c 30 ................................................ad No 108, 2000

am No 45, 2005; No 8, 2010

c 31 ................................................ad No 108, 2000

am No 45, 2005; No 10, 2015

c 32 ................................................ad No 108, 2000

am No 45, 2005

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Endnotes

Endnote 4—Amendment history

Broadcasting Services Act 1992 327

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

c 33 ................................................ad No 108, 2000

am No 45, 2005

c 34 ................................................ad No 108, 2000

am No 45, 2005

c 35 ................................................ad No 108, 2000

am No 8, 2010; No 31, 2014

c 35A .............................................ad No 23, 2001

Part 5

Part 5 heading ................................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; No 31, 2014

c 38 ................................................ad No 108, 2000

am No 45, 2005

rs No 109, 2014

Part 6

Part 6 heading ................................rs No 23, 2001

cc 39, 40.........................................ad No 108, 2000

rep No 23, 2001

c 41 ................................................ad No 108, 2000

am No 23, 2001; 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

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Endnotes

Endnote 4—Amendment history

328 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 45, 2005; No 8, 2010

Part 8

Division 1

Division 1 heading.........................am No 51, 2013

c 49 ................................................ad No 108, 2000

am No 172, 2000: No 120, 2006; No 51, 2013; No 4, 2016

c 50 ................................................ad No 108, 2000

am No 172, 2000; No 45, 2005

rs No 120, 2006

c 51 ................................................ad No 108, 2000

am No 45, 2005

c 51A .............................................ad No 172, 2000

am No 22, 2015

Division 2

c 52 ................................................ad No 108, 2000

am No 128, 2006; No 68, 2007; No 4, 2016; No 14, 2016

c 52A .............................................ad No 120, 2006

am No 68, 2007; No 14, 2016

c 53 ................................................ad No 108, 2000

am No 45, 2005; No 120, 2006; No 4, 2016

c 54 ................................................ad No 108, 2000

am No 45, 2005; No 128, 2006 (as am by 73, 2008); No 68, 2007;

No 14, 2016

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

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Endnotes

Endnote 4—Amendment history

Broadcasting Services Act 1992 329

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

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; No 25, 2015

c 2 ..................................................ad No 124, 2007

am No 124, 2007; No 8, 2010; No 126, 2015

c 3 ..................................................ad No 124, 2007

c 4 ..................................................ad No 124, 2007

am No 126, 2015

c 5 ..................................................ad No 124, 2007

c 6 ..................................................ad No 124, 2007

c 7 ..................................................ad No 124, 2007

c 8 ..................................................ad No 124, 2007

c 9 ..................................................ad No 124, 2007

c 9A ...............................................ad No 124, 2007

c 10 ................................................ad No 124, 2007

c 11 ................................................ad No 124, 2007

c 12 ................................................ad No 124, 2007

c 13 ................................................ad No 124, 2007

c 14 ................................................ad No 124, 2007

am No 25, 2015; No 126, 2015

c 15 ................................................ad No 124, 2007

c 16 ................................................ad No 124, 2007

c 17 ................................................ad No 124, 2007

c 18 ................................................ad No 124, 2007

c 19 ................................................ad No 124, 2007

Authorised Version C2017C00201 registered 04/07/2017

Endnotes

Endnote 4—Amendment history

330 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

Part 2

Division 1

cc 20, 21.........................................ad No 124, 2007

Division 2

c 22 ................................................ad No 124, 2007

am No 25, 2015

c 23 ................................................ad No 124, 2007

c 24 ................................................ad No 124, 2007

c 25 ................................................ad No 124, 2007

c 26 ................................................ad No 124, 2007

c 27 ................................................ad No 124, 2007

am No 46, 2011

Division 3

c 28 ................................................ad No 124, 2007

am No 99, 2014; No 25, 2015

c 29 ................................................ad No 124, 2007

am No 25, 2015

Division 4

Subdivision A

c 30 ................................................ad No 124, 2007

am No 103, 2012; No 25, 2015

c 31 ................................................ad No 124, 2007

am No 46, 2011; No 25, 2015

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

Authorised Version C2017C00201 registered 04/07/2017

Endnotes

Endnote 4—Amendment history

Broadcasting Services Act 1992 331

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

Part 3

Part 3 heading ................................am No 25, 2015

Division 1

Division 1 heading.........................am No 25, 2015

c 37 ................................................ad No 124, 2007

am No 25, 2015

c 38 ................................................ad No 124, 2007

am No 25, 2015

c 39 ................................................ad No 124, 2007

am No 25, 2015

c 40 ................................................ad No 124, 2007

am No 25, 2015

c 41 ................................................ad No 124, 2007

c 42 ................................................ad No 124, 2007

am No 25, 2015

Division 2

Division 2 heading.........................am No 25, 2015

c 43 ................................................ad No 124, 2007

rep No 109, 2014

c 44 ................................................ad No 124, 2007

am No 109, 2014; No 25, 2015

c 45 ................................................ad No 124, 2007

am No 25, 2015

c 46 ................................................ad No 124, 2007

am No 25, 2015

Division 3

c 47 ................................................ad No 124, 2007

am No 25, 2015

c 48 ................................................ad No 124, 2007

am No 25, 2015

c 49 ................................................ad No 124, 2007

Authorised Version C2017C00201 registered 04/07/2017

Endnotes

Endnote 4—Amendment history

332 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 25, 2015

c 50 ................................................ad No 124, 2007

am No 25, 2015

c 51 ................................................ad No 124, 2007

am No 25, 2015

c 52 ................................................ad No 124, 2007

am No 25, 2015

c 53 ................................................ad No 124, 2007

c 54 ................................................ad No 124, 2007

c 55 ................................................ad No 124, 2007

am No 8, 2010; No 46, 2011

Division 4

c 56 ................................................ad No 124, 2007

am No 25, 2015

c 57 ................................................ad No 124, 2007

am No 25, 2015

c 58 ................................................ad No 124, 2007

am No 25, 2015

c 59 ................................................ad No 124, 2007

am No 25, 2015

c 59A .............................................ad No 124, 2007

am No 25, 2015

cc 60, 61.........................................ad No 124, 2007

Division 5

c 62 ................................................ad No 124, 2007

am No 25, 2015

c 63 ................................................ad No 124, 2007

am No 25, 2015

c 64 ................................................ad No 124, 2007

am No 25, 2015

c 65 ................................................ad No 124, 2007

Authorised Version C2017C00201 registered 04/07/2017

Endnotes

Endnote 4—Amendment history

Broadcasting Services Act 1992 333

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 25, 2015

c 66 ................................................ad No 124, 2007

am No 25, 2015

c 67 ................................................ad No 124, 2007

am No 25, 2015

c 68 ................................................ad No 124, 2007

Division 6

c 69 ................................................ad No 124, 2007

am No 25, 2015

c 70 ................................................ad No 124, 2007

am No 25, 2015

c 71 ................................................ad No 124, 2007

am No 25, 2015

c 72 ................................................ad No 124, 2007

am No 25, 2015

c 73 ................................................ad No 124, 2007

am No 25, 2015

Part 4

Division 1

c 73 ................................................ad No 124, 2007

Division 2

cc 74–79.........................................ad No 124, 2007

Division 3

c 80 ................................................ad No 124, 2007

am No 25, 2015

c 81 ................................................ad No 124, 2007

c 82 ................................................ad No 124, 2007

am No 25, 2015

c 83 ................................................ad No 124, 2007

c 84 ................................................ad No 124, 2007

Authorised Version C2017C00201 registered 04/07/2017

Endnotes

Endnote 4—Amendment history

334 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

Division 4

c 85 ................................................ad No 124, 2007

am No 25, 2015

c 86 ................................................ad No 124, 2007

am No 25, 2015

c 87 ................................................ad No 124, 2007

am No 8, 2010; No 25, 2015

c 88 ................................................ad No 124, 2007

c 89 ................................................ad No 124, 2007

am No 25, 2015

c 90 ................................................ad No 124, 2007

am No 25, 2015

Division 5

c 91 ................................................ad No 124, 2007

am No 25, 2015

c 92 ................................................ad No 124, 2007

am No 25, 2015

c 93 ................................................ad No 124, 2007

am No 25, 2015

c 94 ................................................ad No 124, 2007

am No 25, 2015

c 95 ................................................ad No 124, 2007

c 96 ................................................ad No 124, 2007

am No 25, 2015

c 97 ................................................ad No 124, 2007

am No 25, 2015

c 98 ................................................ad No 124, 2007

am No 25, 2015

c 99 ................................................ad No 124, 2007

am No 8, 2010; No 25, 2015

c 100 ..............................................ad No 124, 2007

Authorised Version C2017C00201 registered 04/07/2017

Endnotes

Endnote 4—Amendment history

Broadcasting Services Act 1992 335

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 25, 2015

Division 6

c 101 ..............................................ad No 124, 2007

am No 8, 2010; No 25, 2015

Division 7

c102 ...............................................ad No 124, 2007

c 103 ..............................................ad No 124, 2007

Part 5

c 104 ..............................................ad No 124, 2007

am No 25, 2015

c 105 ..............................................ad No 124, 2007

Part 6

c 106 ..............................................ad No 124, 2007

c 107 ..............................................ad No 124, 2007

c 108 ..............................................ad No 124, 2007

am No 25, 2015

c 109 ..............................................ad No 124, 2007

am No 25, 2015

c 110 ..............................................ad No 124, 2007

am No 25, 2015

Part 7

c 111 ..............................................ad No 124, 2007

c 112 ..............................................ad No 124, 2007

am No 25, 2015; No 51, 2017

Part 8

c 113 ..............................................ad No 124, 2007

am No 25, 2015

Part 9

c 114 ..............................................ad No 124, 2007

am No 25, 2015

c 115 ..............................................ad No 124, 2007

Authorised Version C2017C00201 registered 04/07/2017

Endnotes

Endnote 4—Amendment history

336 Broadcasting Services Act 1992

Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17

Provision affected How affected

am No 25, 2015

c 116 ..............................................ad No 124, 2007

am No 25, 2015

c 117 ..............................................ad No 124, 2007

c 117A ...........................................ad No 124, 2007

c118 ...............................................ad No 124, 2007

rep No 109, 2014

c 119 ..............................................ad No 124, 2007

c 120 ..............................................ad No 124, 2007

c 121 ..............................................ad No 124, 2007

c 122 ..............................................ad No 124, 2007

c 123 ..............................................ad No 124, 2007

am No 59, 2015

Authorised Version C2017C00201 registered 04/07/2017


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