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If a provision of the compiled law has been repealed in accordance with a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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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
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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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(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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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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Section 38B
54 Broadcasting Services Act 1992
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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 38C
58 Broadcasting Services Act 1992
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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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Section 41
68 Broadcasting Services Act 1992
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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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Broadcasting Services Act 1992 69
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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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Section 41C
70 Broadcasting Services Act 1992
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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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Section 41CA
72 Broadcasting Services Act 1992
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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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Section 41CA
74 Broadcasting Services Act 1992
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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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Section 41D
76 Broadcasting Services Act 1992
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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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Section 41D
78 Broadcasting Services Act 1992
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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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Section 43A
80 Broadcasting Services Act 1992
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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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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 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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Broadcasting Services Act 1992 89
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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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Section 43C
Broadcasting Services Act 1992 91
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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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Section 43D
94 Broadcasting Services Act 1992
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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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Section 44
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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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Division 4 General provisions
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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Section 48
Broadcasting Services Act 1992 97
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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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Section 51A
Broadcasting Services Act 1992 99
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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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Division 2 Limitation on control
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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Limitation on directorships Division 3
Section 55
Broadcasting Services Act 1992 101
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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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Division 3 Limitation on directorships
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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Section 56A
Broadcasting Services Act 1992 103
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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
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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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Media diversity Division 5A
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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Section 61AA
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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Division 5A Media diversity
Section 61AC
110 Broadcasting Services Act 1992
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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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Section 61AC
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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Section 61AJ
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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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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Section 61AME
Broadcasting Services Act 1992 123
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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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Section 61AN
124 Broadcasting Services Act 1992
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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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Section 61AN
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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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Section 61AN
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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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128 Broadcasting Services Act 1992
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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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Broadcasting Services Act 1992 131
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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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132 Broadcasting Services Act 1992
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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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Section 61AV
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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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Section 61AY
134 Broadcasting Services Act 1992
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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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Section 61AZ
136 Broadcasting Services Act 1992
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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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Section 61AZA
138 Broadcasting Services Act 1992
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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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Section 61AZC
Broadcasting Services Act 1992 139
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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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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
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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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(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
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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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(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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Broadcasting Services Act 1992 145
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(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
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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
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(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
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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
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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
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(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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Section 61BH
156 Broadcasting Services Act 1992
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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
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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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Section 61BH
158 Broadcasting Services Act 1992
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(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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Local news and information requirements for regional commercial radio broadcasting
licensees Division 5C
Section 61CA
Broadcasting Services Act 1992 159
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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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Division 5C Local news and information requirements for regional commercial radio
broadcasting licensees
Section 61CA
160 Broadcasting Services Act 1992
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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
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(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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Division 5C Local news and information requirements for regional commercial radio
broadcasting licensees
Section 61CB
162 Broadcasting Services Act 1992
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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
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(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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Division 5C Local news and information requirements for regional commercial radio
broadcasting licensees
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
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(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
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(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
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(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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Section 61CF
168 Broadcasting Services Act 1992
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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
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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
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(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
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(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
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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
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(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
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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
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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
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(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
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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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Section 64
178 Broadcasting Services Act 1992
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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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Section 65A
Broadcasting Services Act 1992 179
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(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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Section 66
180 Broadcasting Services Act 1992
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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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Section 67
Broadcasting Services Act 1992 181
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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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Section 68
182 Broadcasting Services Act 1992
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(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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Section 69
Broadcasting Services Act 1992 183
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(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
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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
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(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
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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
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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
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(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
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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
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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
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(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
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(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
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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
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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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Section 85A
198 Broadcasting Services Act 1992
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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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Section 86
Broadcasting Services Act 1992 199
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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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Section 87A
200 Broadcasting Services Act 1992
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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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Section 87A
Broadcasting Services Act 1992 201
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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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Section 87B
202 Broadcasting Services Act 1992
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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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Section 90
Broadcasting Services Act 1992 203
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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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Section 92A
208 Broadcasting Services Act 1992
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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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Broadcasting Services Act 1992 211
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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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212 Broadcasting Services Act 1992
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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
214 Broadcasting Services Act 1992
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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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Section 97
Broadcasting Services Act 1992 215
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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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Division 1 Allocation of subscription television broadcasting licences
Section 98
216 Broadcasting Services Act 1992
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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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Division 2 Conditions of subscription television broadcasting licence
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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Division 2A Eligible drama expenditure
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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(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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(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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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
Broadcasting Services Act 1992 229
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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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230 Broadcasting Services Act 1992
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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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Broadcasting Services Act 1992 235
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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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Broadcasting Services Act 1992 237
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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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Broadcasting Services Act 1992 239
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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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Section 103R
Broadcasting Services Act 1992 241
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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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Section 103R
242 Broadcasting Services Act 1992
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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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Section 103RA
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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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Section 103T
Broadcasting Services Act 1992 245
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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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Section 103T
246 Broadcasting Services Act 1992
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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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Section 103TA
Broadcasting Services Act 1992 247
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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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Section 103UA
Broadcasting Services Act 1992 249
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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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Section 103V
Broadcasting Services Act 1992 251
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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
252 Broadcasting Services Act 1992
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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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Section 103W
Broadcasting Services Act 1992 253
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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 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
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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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Section 103XA
256 Broadcasting Services Act 1992
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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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(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
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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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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
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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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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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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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(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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272 Broadcasting Services Act 1992
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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
276 Broadcasting Services Act 1992
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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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Division 2 Allocation of international broadcasting licences
Section 121FC
278 Broadcasting Services Act 1992
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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
Broadcasting Services Act 1992 279
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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
280 Broadcasting Services Act 1992
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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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Broadcasting Services Act 1992 281
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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
Broadcasting Services Act 1992 283
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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
284 Broadcasting Services Act 1992
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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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Section 121FJA
Broadcasting Services Act 1992 285
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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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Section 121FJC
286 Broadcasting Services Act 1992
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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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Section 121FL
Broadcasting Services Act 1992 287
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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
288 Broadcasting Services Act 1992
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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
Broadcasting Services Act 1992 289
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subsection does not limit the material to which the Minister for
Foreign Affairs may have regard.
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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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Section 121FLC
Broadcasting Services Act 1992 291
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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
292 Broadcasting Services Act 1992
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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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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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Division 4A Nominated broadcaster declarations
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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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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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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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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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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(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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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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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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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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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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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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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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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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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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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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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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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
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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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Section 130N
Broadcasting Services Act 1992 337
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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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Section 130P
338 Broadcasting Services Act 1992
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(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
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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
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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
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(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
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(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
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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
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(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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Broadcasting Services Act 1992 351
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(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
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(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
354 Broadcasting Services Act 1992
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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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Section 130ZBB
356 Broadcasting Services Act 1992
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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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Section 130ZC
Broadcasting Services Act 1992 357
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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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Section 130ZC
358 Broadcasting Services Act 1992
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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
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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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Section 130ZCA
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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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Section 130ZCA
362 Broadcasting Services Act 1992
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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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Section 130ZCA
Broadcasting Services Act 1992 363
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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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(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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Section 130ZF
Broadcasting Services Act 1992 365
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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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(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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Section 130ZF
Broadcasting Services Act 1992 367
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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
370 Broadcasting Services Act 1992
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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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Section 130ZH
Broadcasting Services Act 1992 371
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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
372 Broadcasting Services Act 1992
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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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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
Broadcasting Services Act 1992 375
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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
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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
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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
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(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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Captioning obligations of commercial television broadcasting licensees and national
broadcasters Division 2
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
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(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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(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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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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(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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(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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(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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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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(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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(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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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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(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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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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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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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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Section 130ZW
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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)
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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412 Broadcasting Services Act 1992
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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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Division 4 Captioning standards
Section 130ZZA
414 Broadcasting Services Act 1992
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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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Section 130ZZA
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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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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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Section 130ZZB
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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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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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Offences for providing unlicensed services Division 1
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
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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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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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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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Division 3 Action in relation to breaches by licensees
Section 140
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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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Division 3 Action in relation to breaches by licensees
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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Section 142A
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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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Division 3 Action in relation to breaches by licensees
Section 143
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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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Division 4 Action in relation to class licences
Section 144
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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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Anti-hoarding rules Part 10A
Introduction Division 1
Section 146A
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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Division 1 Introduction
Section 146B
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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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Division 1 Introduction
Section 146C
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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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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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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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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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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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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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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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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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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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(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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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
Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17
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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Complaints relating to national broadcasting services or datacasting services provided
by the ABC or SBS Division 2
Section 150
Broadcasting Services Act 1992 463
Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17
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
Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17
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
Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17
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
Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17
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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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
Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17
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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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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Section 194
Broadcasting Services Act 1992 475
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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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Section 198
476 Broadcasting Services Act 1992
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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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General Division 4
Section 200
Broadcasting Services Act 1992 477
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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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Section 202
478 Broadcasting Services Act 1992
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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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Section 203
Broadcasting Services Act 1992 479
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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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Section 203
480 Broadcasting Services Act 1992
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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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Section 204
Broadcasting Services Act 1992 481
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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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Section 205A
Broadcasting Services Act 1992 489
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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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Section 205C
492 Broadcasting Services Act 1992
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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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Broadcasting Services Act 1992 493
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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
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(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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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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Ancillary contravention of civil penalty provision Division 1
Section 205E
Broadcasting Services Act 1992 497
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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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Division 2 Civil penalty orders
Section 205EA
498 Broadcasting Services Act 1992
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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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Section 205F
Broadcasting Services Act 1992 499
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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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Division 2 Civil penalty orders
Section 205G
500 Broadcasting Services Act 1992
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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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Section 205N
Broadcasting Services Act 1992 501
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(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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Division 2 Civil penalty orders
Section 205PAA
502 Broadcasting Services Act 1992
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(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
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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
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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
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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
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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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Section 205X
Broadcasting Services Act 1992 507
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(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
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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
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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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Section 205ZB
510 Broadcasting Services Act 1992
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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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Section 205ZE
Broadcasting Services Act 1992 511
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(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
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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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(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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(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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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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Section 212
516 Broadcasting Services Act 1992
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(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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Section 212
Broadcasting Services Act 1992 517
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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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Section 212A
518 Broadcasting Services Act 1992
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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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Section 212B
520 Broadcasting Services Act 1992
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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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Broadcasting Services Act 1992 521
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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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Section 215
522 Broadcasting Services Act 1992
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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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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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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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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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(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
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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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
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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(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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(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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consideration in cash or in kind” were inserted after
“advertisements”.
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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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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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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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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)
Authorised Version C2017C00201 registered 04/07/2017
Schedule 2 Standard conditions
Part 7 Services provided under class licences
Clause 11
580 Broadcasting Services Act 1992
Compilation No. 86 Compilation date: 23/6/17 Registered: 4/7/17
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.
Authorised Version C2017C00201 registered 04/07/2017