An Act relating to broadcasting services, datacasting services
and online services, and for related purposes
Part 1—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the
Broadcasting Services Act 1992.
2
Commencement [see
Note 1]
(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
(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
(i) to encourage the provision of
means for addressing complaints about broadcasting services; and
(j) to ensure that providers of
broadcasting services place a high priority on the protection of children from
exposure to program material which may be harmful to them; and
(ja) to ensure that international
broadcasting services are not provided contrary to Australia’s national
interest; and
(k) to provide a means for addressing
complaints about certain Internet content; and
(l) to restrict access to certain
Internet content that is likely to cause offence to a reasonable adult; and
(m) to protect children from exposure
to Internet content that is unsuitable for children; and
(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:
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
content hosted in Australia, and Internet carriage services supplied to end‑users
in Australia, be regulated in a manner that:
(a) enables public interest
considerations to be addressed in a way that does not impose unnecessary
financial and administrative burdens on Internet content hosts and 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.
(3A) This section does not apply to Part 8B
(which deals with international broadcasting services).
(4) In this section:
Internet carriage service has the same
meaning as in Schedule 5.
Internet content has the same meaning as in
Schedule 5.
Internet content host has the same meaning as
in Schedule 5.
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 and the Internet 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.
6
Interpretation
(1) In this Act, unless the contrary
intention appears:
ACMA means the Australian Communications and
Media Authority.
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 (including a de
facto spouse) or a parent, child, brother or sister of the person; or
(b) a partner of the person or, if a
partner of the person is a natural person, a spouse or a child of a partner of
the person; or
(c) if the person or another person
who is an associate of the person under another paragraph receives benefits or
is capable of benefiting under a trust—the trustee of the trust; or
(d) a person (whether a company or
not) who:
(i) acts, or is accustomed
to act; or
(ii) under a contract or an
arrangement or understanding (whether formal or informal) is intended or
expected to act;
in accordance with the
directions, instructions or wishes of, or in concert with, the first‑mentioned
person or of the first‑mentioned person and another person who is an
associate of the first‑mentioned person under another paragraph; or
(e) if the person is a company—another
company if:
(i) the other company is a
related body corporate of the person for the purposes of the Corporations
Act 1990; or
(ii) the
person, or the person and another person who is an associate of the person
under another paragraph, are in a position to exercise control of the other
company;
but persons are not associates if the ACMA is satisfied
that they do not act together in any relevant dealings relating to that
company, licence or newspaper, and neither of them is in a position to exert
influence over the business dealings of the other in relation to that company,
licence or newspaper.
Note: Licence is given an extended
meaning by this subsection.
associate member means an associate member of
the ACMA.
authorised infringement notice officer means:
(a) the Chair of the ACMA; or
(b) a member of the staff of the ACMA
appointed under section 205ZE.
broadcasting service means a service that
delivers television programs or radio programs to persons having equipment
appropriate for receiving that service, whether the delivery uses the
radiofrequency spectrum, cable, optical fibre, satellite or any other means or
a combination of those means, but does not include:
(a) a service (including a teletext
service) that provides no more than data, or no more than text (with or without
associated still images); or
(b) a service that makes programs
available on demand on a point‑to‑point basis, including a dial‑up
service; or
(c) a service, or a class of services,
that the Minister determines, by notice in the Gazette, not to fall
within this definition.
broadcasting services bands means:
(a) that part of the radiofrequency
spectrum that:
(i) is designated under
subsection 31(1) of the Radiocommunications Act 1992 as being primarily
for broadcasting purposes; and
(ii) is referred by the
Minister under that subsection to the ACMA for planning; and
(b) that part of the radiofrequency
spectrum that:
(i) is designated under
subsection 31(1A) of the Radiocommunications Act 1992 as being partly
for the purpose of digital radio broadcasting services and restricted
datacasting services; and
(ii) is referred by the
Minister under that subsection to the ACMA for planning.
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.
business day means a day that is not a Saturday,
a Sunday or a public holiday in the place concerned.
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.
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:
(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 41A, are authorised
by the licence.
commercial television broadcasting service
means a commercial broadcasting service that provides television programs.
community broadcasting licence means:
(a) a community radio broadcasting
licence; or
(b) a community television
broadcasting licence.
community broadcasting service has the
meaning given by section 15.
community radio broadcasting licence means:
(a) a licence under Part 6 to
provide:
(i) in the case of a
licence allocated under subsection 82(1)—a community radio broadcasting
service; or
(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.
constitutional corporation means a
corporation to which paragraph 51(xx) of the Constitution applies.
control includes control as a result of, or
by means of, trusts, agreements, arrangements, understandings and practices,
whether or not having legal or equitable force and whether or not based on
legal or equitable rights.
core commercial television broadcasting service,
in relation to a commercial television broadcasting licence, has the meaning
given by whichever of paragraph 41A(1)(b) or (2)(a) is applicable.
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.
designated community radio broadcasting licence
has the meaning given by section 8AA.
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 moratorium period for a licence
area has the meaning given by subsection 35C(3).
digital radio multiplex transmitter licence
has the same meaning as in the Radiocommunications Act 1992.
digital radio start‑up day for a
licence area has the meaning given by section 8AC.
domestic digital television receiver has the
same meaning as in the Radiocommunications Act 1992.
earliest digital television switch‑over day
means the earliest day on which a simulcast period (within the meaning of
Schedule 4) ends.
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 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:
(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 an area designated by the ACMA
under section 29, 40 or 92G.
Note: See also section 8AD, which deals with
deemed radio broadcasting licence areas.
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).
national broadcasting service has the meaning
given by section 13.
national radio broadcasting service means a
national broadcasting service that provides radio programs.
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.
Parliament
means:
(a) the Parliament of the
Commonwealth; or
(b) a State Parliament; or
(c) the legislature of a Territory.
penalty unit has the meaning given by section 4AA
of the Crimes Act 1914.
political party means an organisation whose
objects or activities include the promotion of the election of candidates
endorsed by it to a Parliament.
population of Australia means
the Australian population determined by the ACMA under section 30.
program, in
relation to a broadcasting service, means:
(a) matter the primary purpose of which
is to entertain, to educate or to inform an audience; or
(b) advertising or sponsorship matter,
whether or not of a commercial kind.
program standards means standards determined
by the ACMA relating to the content or delivery of programs.
radio program has a meaning affected by
section 8AB.
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.
remote Indigenous community has the meaning
given by section 8B.
restricted datacasting licence means a
datacasting licence allocated as a result of an application for a restricted
datacasting licence.
restricted datacasting service means a
datacasting service provided under, and in accordance with the conditions of, a
restricted datacasting licence.
satellite subscription television broadcasting
licence means a licence under Part 7 to provide a subscription
television broadcasting service with the use of a subscription television
satellite.
shares, in relation to a company, means
shares in, or stock forming part of, the capital of the company.
subscription broadcasting service has the
meaning given by section 16.
subscription fee includes any form of
consideration.
subscription narrowcasting service has the
meaning given by section 17.
subscription radio broadcasting service means
a subscription broadcasting service that provides radio programs.
subscription radio narrowcasting service
means a subscription narrowcasting service that provides radio programs.
subscription television broadcasting licence
means a licence under Part 7 to provide one or more subscription
television broadcasting services.
subscription television broadcasting service
means a subscription broadcasting service that provides television programs.
subscription television narrowcasting service
means a subscription narrowcasting service that provides television programs.
subscription television satellite means a
satellite that was, at any time before 1 July 1997, operated under the
general telecommunications licence that was granted to AUSSAT Pty Ltd and
notified on 26 November 1991 in Gazette No. S323.
telecommunications carrier means a carrier
(within the meaning of the Telecommunications Act 1997).
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
(b) the acquisition of things by gift
or inheritance.
(2) A determination under paragraph (c)
of the definition of broadcasting service in subsection (1)
is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
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:
(a) a person has a voting interest in
a company if the person is in a position to exercise control of votes cast on a
poll at a meeting of the company; and
(b) the percentage of the interest is
the greatest percentage of the number of votes, expressed as a percentage of
the total number of votes that could be cast on any issue at a meeting of the
company, the casting of which the person is in a position to control.
(3) For the purposes of this Act:
(a) a person has a dividend interest
in a company if:
(i) the person is, or
would become if a dividend were declared, beneficially entitled to be paid or
credited a dividend by the company; or
(ii) under the memorandum
and articles of association of the company, a share of any profits of the
company is to be, or may be, paid or credited to the person otherwise than as
dividends on shares; and
(b) the percentage of the interest is:
(i) if subparagraph (a)(i)
applies—the amount of the dividend to which the person is beneficially entitled
or will become beneficially entitled expressed as a percentage of the total of
all dividends to which members of the company become entitled at that time; or
(ii) if subparagraph (a)(ii)
applies—the amount of the maximum share of any profits of the company that
could be paid or credited to the person at a particular time expressed as a
percentage of the total of all shares of profits that could be paid or credited
to all members of the company at that time.
(4) For the purposes of this Act:
(a) a person has a winding‑up
interest in a company if the person would be entitled to a share of the
property of the company that could be distributed among members of the company
if property of the company were distributed among members, whether as a result
of a winding‑up or otherwise; and
(b) the percentage of the interest is
the percentage that the value of that part of the property of the company to
which the person would be so entitled bears to the total value of the property
of the company.
(5) A person may have a voting interest, a
dividend interest or a winding‑up interest in a company even if the
person does not have a beneficial entitlement to, or to an interest in, shares
in the company.
8A
Captioning taken to be part of program
(1) For the purposes of this Act, if a
television program is captioned for the deaf and hearing impaired, the
captioning is taken to be part of the program.
(2) Subsection (1) is enacted for the
avoidance of doubt.
8AA
Designated community radio broadcasting licence
(1) For the purposes of this Act, a community
radio broadcasting licence is a designated community radio broadcasting
licence if:
(a) the community radio broadcasting
licence was allocated under Part 6 (other than under subsection 82(1));
and
(b) the licence area of the community
radio broadcasting licence is the same as the licence area of a commercial
radio broadcasting licence; and
(c) the community radio broadcasting
service or services provided under the community radio broadcasting licence
satisfy such conditions (if any) as are set out in a legislative instrument
made by the ACMA.
Note: See also section 8AD, which deals with
deemed radio broadcasting licence areas.
(2) The Minister may, by legislative
instrument, give the ACMA a direction about the exercise of the power conferred
by paragraph (1)(c).
(3) The ACMA must comply with a direction
under subsection (2).
8AB
Digital program enhancement content taken to be a radio program
Commercial radio broadcasting services
(1) For the purposes of this Act and any
other law of the Commonwealth, if a commercial radio broadcasting licensee
provides:
(a) a digital commercial radio
broadcasting service; and
(b) digital program enhancement
content in relation to a radio program delivered by that service;
the digital program enhancement content is taken to be a
radio program delivered by that service.
Community radio broadcasting services
(2) For the purposes of this Act and any
other law of the Commonwealth, if a designated community radio broadcasting
licensee provides:
(a) a digital community radio
broadcasting service; and
(b) digital program enhancement
content in relation to a radio program delivered by that service;
the digital program enhancement content is taken to be a
radio program delivered by that service.
National radio broadcasting services
(3) For the purposes of this Act and any
other law of the Commonwealth, if a national broadcaster provides:
(a) a digital national radio
broadcasting service; and
(b) digital program enhancement
content in relation to a radio program delivered by that service;
the digital program enhancement content is taken to be a
radio program delivered by that service.
8AC
Digital radio start‑up day
(1) If the ACMA is satisfied that:
(a) the ACMA has taken sufficient
action under:
(i) Part 3 of this
Act; and
(ii) Part 2.3 of the Radiocommunications
Act 1992;
to facilitate the provision of
the following services in a licence area:
(iii) digital commercial
radio broadcasting services;
(iv) digital community radio
broadcasting services;
(v) digital national radio
broadcasting services; and
(b) one or more foundation digital
radio multiplex transmitter licences have been issued for the licence area; and
(c) the multiplex capacity, or the
combined multiplex capacities, of those licences are sufficient to fulfil the
standard access entitlements that are likely to come into existence under
subsection 118NQ(2) of the Radiocommunications Act 1992 in its
application to the licence area; and
(d) an access undertaking under
Division 4B of Part 3.3 of the Radiocommunications Act 1992 is
in force for the licence or licences referred to in paragraph (b);
the ACMA may, by writing, declare a specified day to be
the digital radio start‑up day for the licence area.
(2) A day specified in a declaration under
subsection (1) must not be earlier than the day on which the declaration
is made.
(3) The ACMA must ensure that:
(a) the digital radio start‑up
day for a metropolitan licence area is not later than 1 January 2009; and
(b) the digital radio start‑up
day for a regional licence area is the day specified for the regional licence
area in a legislative instrument made by the Minister.
(4) A copy of a declaration under
subsection (1) must be made available on the ACMA’s Internet site.
(5) A declaration under subsection (1)
is not a legislative instrument.
ACMA to give notice of intention to make a declaration
(6) Before making a declaration under
subsection (1), the ACMA must, by notice published on the ACMA’s Internet
site, 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.
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; or
(f) Tasmania.
regional licence area means a licence area
that is not a metropolitan licence area.
Note: See also section 8AD, which deals with
deemed radio broadcasting licence areas.
8AD
Deemed radio broadcasting licence areas
Western Suburbs Sydney RA1
(1) For the purposes of:
(a) section 8AC of this Act; and
(b) the definition of designated
BSA radio area in section 5 of the Radiocommunications Act 1992;
and
(c) the application of:
(i) any other provision of
this Act; or
(ii) any other provision of
the Radiocommunications Act 1992; or
(iii) any other law of the
Commonwealth;
to digital commercial radio
broadcasting services;
the licence area known as Western Suburbs Sydney RA1 is
taken to be the same as the commercial radio broadcasting licence area in which
is situated the General Post Office of Sydney.
Hobart RA2 and Hobart RA4
(2) For the purposes of:
(a) sections 8AA and 8AC of this
Act; and
(b) the definition of designated
BSA radio area in section 5 of the Radiocommunications Act 1992;
and
(c) paragraph 9C(1)(i) and
subparagraph 9C(1)(j)(ii) of the Radiocommunications Act 1992; and
(d) the application of:
(i) any other provision of
this Act; or
(ii) any other provision of
the Radiocommunications Act 1992; or
(iii) any other law of the
Commonwealth;
to digital community radio
broadcasting services;
the licence areas known as Hobart RA2 and Hobart RA4 are
taken to be the same as the commercial radio broadcasting licence area in which
is situated the General Post Office of Hobart.
Other licence areas
(3) The ACMA may, by legislative instrument,
determine that, for the purposes of:
(a) sections 8AA and 8AC of this
Act; and
(b) the definition of designated
BSA radio area in section 5 of the Radiocommunications Act 1992;
and
(c) paragraph 9C(1)(i) and
subparagraph 9C(1)(j)(ii) of the Radiocommunications Act 1992; and
(d) the application of:
(i) any other provision of
this Act; or
(ii) any other provision of
the Radiocommunications Act 1992; or
(iii) any other law of the
Commonwealth;
to digital community radio
broadcasting services;
a specified licence area of a community radio broadcasting
licence is taken to be the same as a specified licence area of a commercial
radio broadcasting licence.
(4) The Minister may, by legislative
instrument, give the ACMA a direction about the exercise of the power conferred
by subsection (3).
(5) The ACMA must comply with a direction
under subsection (4).
8B
Remote Indigenous community
(1) An Indigenous community is a remote
Indigenous community for the purposes of this Act if the ACMA so
determines in writing.
(2) A determination under subsection (1)
is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
9 Act
to bind the Crown
This Act binds the Crown in right of the
Commonwealth, of each of the States, of the Australian Capital Territory and of
the Northern Territory, but nothing in this Act renders the Crown liable to be
prosecuted for an offence.
10
Extension of Act to the external Territories
This Act extends to all the external
Territories.
10A
Application of the Criminal Code
(1) Chapter 2 of the Criminal Code
applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) Despite subsection (1), Part 2.5
of the Criminal Code does not apply to an offence against Schedule 5
to this Act.
Part 2—Categories of broadcasting services
11
Categories of broadcasting services
The following categories of broadcasting
services are broadcasting services to which this Act relates:
(a) national broadcasting services;
(b) commercial broadcasting services;
(c) community broadcasting services;
(d) subscription broadcasting
services;
(e) subscription narrowcasting
services;
(f) open narrowcasting services;
(fa) international broadcasting
services.
11A
Dual categorisation of international broadcasting services
An international broadcasting service
may also fall into another category of broadcasting services.
12
Method of regulating particular services
(1) Commercial broadcasting services,
community broadcasting services, subscription television broadcasting services
and international broadcasting services require individual licences.
(2) Other broadcasting services (other than
national broadcasting services) are to be provided under the relevant class
licence.
Dual categorisation of international broadcasting
services
(3) An international broadcasting service
that also falls into the category of commercial broadcasting services requires
both:
(a) an international broadcasting
licence; and
(b) either:
(i) a commercial radio
broadcasting licence; or
(ii) a commercial television
broadcasting licence.
(4) An international broadcasting service
that also falls into the category of community broadcasting services requires
both:
(a) an international broadcasting
licence; and
(b) a community broadcasting licence.
(5) An international broadcasting service
that also falls into the category of subscription television broadcasting
services requires both:
(a) an international broadcasting
licence; and
(b) a subscription television
broadcasting licence.
(6) Both of the following rules apply to an
international broadcasting service that also falls into a category of
broadcasting services covered by subsection (2):
(a) the service requires an
international broadcasting licence;
(b) the service is to be provided
under the relevant class licence.
13
National broadcasting services
(1) National broadcasting services are:
(a) broadcasting services provided by
the Australian Broadcasting Corporation in accordance with section 6 of
the Australian Broadcasting Corporation Act 1983; or
(b) broadcasting services provided by
the Special Broadcasting Service Corporation in accordance with section 6
of the Special Broadcasting Service Act 1991; or
(c) broadcasting services provided
under the Parliamentary Proceedings Broadcasting Act 1946.
(2) National broadcasting services do not
include subscription broadcasting services or subscription or open
narrowcasting services provided by the Australian Broadcasting Corporation or
the Special Broadcasting Service Corporation.
(3) Subsection (2) does not apply to
services specified by the Minister by notice in the Gazette.
(4) A
specification under subsection (3) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(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
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.
15
Community broadcasting services
Community broadcasting services are
broadcasting services that:
(a) are provided for community
purposes; and
(b) are not operated for profit or as
part of a profit‑making enterprise; and
(c) that provide programs that:
(i) are able to be
received by commonly available equipment; and
(ii) are made available
free to the general public; and
(d) comply with any determinations or
clarifications under section 19 in relation to community broadcasting
services.
16
Subscription broadcasting services
Subscription
broadcasting services are broadcasting services that:
(a) provide programs that, when
considered in the context of the service being provided, appear to be intended
to appeal to the general public; and
(b) are made available to the general
public but only on payment of subscription fees (whether periodical or
otherwise); and
(c) comply with any determinations or
clarifications under section 19 in relation to subscription broadcasting
services.
17
Subscription narrowcasting services
Subscription narrowcasting services are
broadcasting services:
(a) whose reception is limited:
(i) by being targeted to
special interest groups; or
(ii) by being intended only
for limited locations, for example, arenas or business premises; or
(iii) by being provided
during a limited period or to cover a special event; or
(iv) because they provide
programs of limited appeal; or
(v) for some other reason;
and
(b) that are made available only on
payment of subscription fees (whether periodical or otherwise); and
(c) that comply with any
determinations or clarifications under section 19 in relation to
subscription narrowcasting services.
18
Open narrowcasting services
(1) Open narrowcasting services are
broadcasting services:
(a) whose reception is limited:
(i) by being targeted to
special interest groups; or
(ii) by being intended only
for limited locations, for example, arenas or business premises; or
(iii) by being provided
during a limited period or to cover a special event; or
(iv) because they provide
programs of limited appeal; or
(v) for some other reason;
and
(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.
(1B) A HDTV multi‑channelled national
television broadcasting service (within the meaning of Schedule 4) is not
an open narrowcasting service.
(2) A SDTV multi‑channelled national
television broadcasting service (within the meaning of Schedule 4) is not
an open narrowcasting service.
(3) A digital commercial radio broadcasting
service is not an open narrowcasting service.
(4) A digital community radio broadcasting
service is not an open narrowcasting service.
(5) A digital national radio broadcasting
service is not an open narrowcasting service.
18A
International broadcasting services
(1) International broadcasting services are
broadcasting services that are targeted, to a significant extent, to audiences
outside Australia, where:
(a) the means of delivering the
services involves the use of a radiocommunications transmitter in Australia
(whether alone or in combination with any other means); and
(b) the services comply with any
determinations or clarifications under section 19 in relation to
international broadcasting services.
(2) A broadcasting service is not an
international broadcasting service if the broadcasting service is:
(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(b) of
the Acts Interpretation Act 1901 and section 10 of this Act to a
provision of this Act that deals with a category of broadcasting services other
than international broadcasting services.
(5) In this section:
Australia includes the external Territories.
radiocommunications transmitter
has the same meaning as in the Radiocommunications Act 1992.
19 ACMA
may determine additional criteria or clarify existing criteria
(1) The ACMA may, by notice in the Gazette:
(a) determine additional criteria to
those specified in sections 14 to 18A; or
(b) clarify the criteria specified in
sections 14 to 18A;
for the purpose of distinguishing between categories of
broadcasting services.
(2) Different criteria or clarifications may
be determined or made for radio services and television services.
(3) The Minister may give specific directions
to the ACMA as to the making of determinations and clarifications, and the ACMA
must observe those directions.
20
Determinations and clarifications to be disallowable by the Parliament
Determinations and clarifications under
section 19 are disallowable instruments for the purposes of section 46A
of the Acts Interpretation Act 1901.
21
Requests to ACMA to decide which category a broadcasting service falls into
(1) A person who is providing, or who
proposes to provide, a broadcasting service may apply to the ACMA for an
opinion as to which category, or categories, of broadcasting services the
service falls into.
(2) An application must be in accordance with
a form approved in writing by the ACMA, and must state the applicant’s opinion
as to which category, or categories, of broadcasting services the service falls
into.
(3) If the ACMA considers that additional
information is required before an opinion can be given, the ACMA may, by notice
in writing given to the applicant within 30 days after receiving the
application, request the applicant to provide that information.
(4) The ACMA must, as soon as practicable
after:
(a) receiving the application; or
(b) if the ACMA has requested further
information—receiving that further information;
give the applicant, in writing, its opinion as to which
category, or categories, of broadcasting services the service falls into.
(5) If the ACMA has given an opinion under
this section to the provider of a broadcasting service, neither the ACMA nor
any other Government agency may, while the circumstances relating to the
broadcasting service remain substantially the same as those advised to the ACMA
in relation to the application for the opinion:
(a) take any action against the
provider of the service during the period of 5 years commencing on the day on
which the opinion is given on the basis that the service falls into a different
category, or different categories, of broadcasting services than that advised
in the opinion; or
(b) unless the ACMA has made a
determination or clarification under section 19 after that opinion was
given that places the broadcasting service in a different category or different
categories—take any action against the provider of the service after the end of
that period on the basis that the service falls into a different category, or
different categories, of broadcasting services.
(6) If the ACMA does not, within 45 days
after:
(a) receiving the application; or
(b) if the ACMA has requested further
information—receiving that further information;
give the applicant, in writing, its opinion as to which
category, or categories, of broadcasting services the service falls into, the ACMA
is taken to have given an opinion at the end of that period that accords with
the applicant’s opinion.
(7) The ACMA may charge a fee for providing
an opinion under this section.
(8) The ACMA must not give an opinion under
this section that a particular broadcasting service falls into more than one
category of broadcasting services unless one of the categories is international
broadcasting services.
(9) A person must not, in an application
under this section, state an opinion that a particular broadcasting service
falls into more than one category of broadcasting services unless one of the
categories is international broadcasting services.
22
Matters to be considered by ACMA
In making determinations or
clarifications under section 19 in relation to broadcasting services, and
in giving opinions under section 21 in relation to broadcasting services,
the ACMA is to have regard to:
(a) the geographic coverage of those
services; and
(b) the number of persons who receive
or are able to receive those services; and
(c) the accessibility of those
services, including:
(i) whether those services
are encrypted; and
(ii) whether their
availability is otherwise restricted, whether because of the high cost of the
equipment required to receive those services, the controlled supply of that
equipment or otherwise; and
(iii) whether their
comprehensibility is otherwise restricted; and
(d) the duration and frequency of the
provision of those services, including whether those services are provided for
a set period only; and
(e) the nature of the audience to
which those services are targeted; and
(f) the
nature of the programs being provided by those services, including:
(i) the level of interest
in the subject matter of those programs; and
(ii) whether those programs
are directed at a specialised audience; and
(iii) the social and
cultural impact of those programs; and
(g) such other matters as the ACMA
thinks fit.
Part 3—Planning of the broadcasting services bands
23
Planning criteria
In performing functions under this Part,
the ACMA is to promote the objects of this Act including the economic and
efficient use of the radiofrequency spectrum, and is to have regard to:
(a) demographics; and
(b) social and economic
characteristics within the licence area, within neighbouring licence areas and
within Australia generally; and
(c) the number of existing
broadcasting services and the demand for new broadcasting services within the
licence area, within neighbouring licence areas and within Australia generally;
and
(d) developments in technology; and
(e) technical restraints relating to
the delivery or reception of broadcasting services; and
(f) the demand for radiofrequency
spectrum for services other than broadcasting services; and
(g) such other matters as the ACMA
considers relevant.
24 ACMA
to determine priorities
(1) Before preparing frequency allotment
plans or licence area plans, the ACMA must, by notice in writing, determine
priorities, as between particular areas of Australia and as between different
parts of the broadcasting services bands, for the preparation of those plans.
(2) The ACMA may, by notice in writing, vary
priorities.
25
Preparation of frequency allotment plans
(1) Where the
Minister has, under subsection 31(1) of the Radiocommunications Act 1992,
referred a part of the radiofrequency spectrum to the ACMA for planning, the ACMA
must prepare in writing a frequency allotment plan that determines the number
of channels that are to be available in particular areas of Australia to
provide broadcasting services or restricted datacasting services, or both, using
that part of the radiofrequency spectrum.
(2) The ACMA may, by notice in writing, vary
a frequency allotment plan prepared under subsection (1).
(2A) If the
Minister has, under subsection 31(1A) of the Radiocommunications Act 1992,
referred a part of the radiofrequency spectrum to the ACMA for planning, the
ACMA must, by legislative instrument, prepare a frequency allotment plan that
determines the number of channels that are to be available in particular areas
of Australia to provide the following services using that part of the
radiofrequency spectrum:
(a) digital commercial radio
broadcasting services;
(b) digital community radio
broadcasting services;
(c) digital national radio
broadcasting services;
(d) restricted datacasting services.
(2B) The ACMA may, by legislative instrument,
vary a frequency allotment plan prepared under subsection (2A).
(3) In preparing or varying a frequency
allotment plan, the ACMA must comply with any directions, whether of a general
or specific nature, given to the ACMA in writing by the Minister.
(4) Sections 23, 24 and 27 do not apply
in relation to the preparation or variation of a frequency allotment plan to
the extent to which the frequency allotment plan or the variation, as the case
may be, relates to any of the following services:
(a) digital commercial radio
broadcasting services;
(b) digital community radio
broadcasting services;
(c) digital national radio
broadcasting services;
(d) restricted datacasting services.
26
Preparation of licence area plans
(1) The ACMA must, by legislative instrument,
prepare licence area plans that determine the number and characteristics,
including technical specifications, of broadcasting services that are to be
available in particular areas of Australia with the use of the broadcasting
services bands, and those plans must be consistent with the relevant frequency
allotment plan.
(1A) To the extent to which a licence area plan
deals with:
(a) digital commercial radio broadcasting
services; or
(b) digital community radio
broadcasting services; or
(c) digital national radio
broadcasting services;
the licence area plan is not required to determine the
technical specifications of those services.
(2) The ACMA may, by legislative instrument,
vary a licence area plan.
(3) If:
(a) a review is conducted under
section 35A; and
(b) after the completion of the report
of the review, the Minister is satisfied that a licence area plan should be
varied in accordance with the recommendations in the report;
the Minister may give the ACMA a written direction
requiring the ACMA to vary the licence area plan as specified in the direction.
(4) Subsection (3) does not limit subsection (2).
(5) The ACMA must comply with a direction
under subsection (3).
(6) Sections 23 and 27 do not apply in
relation to anything done by the ACMA in compliance with a direction under subsection (3).
26A
Licence area plans—multi‑channelled commercial television broadcasting
services
(1) If:
(a) a commercial television
broadcasting licence for a licence area was in force immediately before 1 January 2007; and
(b) the licence authorises the
licensee to provide a HDTV multi‑channelled commercial television
broadcasting service in the licence area;
the relevant licence area plan is not required to deal
with the HDTV multi‑channelled commercial television broadcasting
service.
(2) Subsection (1) ceases to have effect
at the end of the simulcast period, or the simulcast‑equivalent period,
for the licence area concerned.
(3) In this section:
HDTV multi‑channelled commercial television
broadcasting service has the same meaning as in Schedule 4.
simulcast‑equivalent period has the
same meaning as in Schedule 4.
simulcast period has the same meaning as in
Schedule 4.
26B
Licence area plans—multi‑channelled national television broadcasting
services
(1) Licence area plans are not required to
deal with SDTV multi‑channelled national television broadcasting
services.
(1A) Licence area plans are not required to deal
with HDTV multi‑channelled national television broadcasting services.
(2) Subsections (1) and (1A) cease to
have effect at the end of the simulcast period, or the simulcast‑equivalent
period, for the coverage area concerned.
(3) In this section:
HDTV multi‑channelled national television
broadcasting service has the same meaning as in Schedule 4.
SDTV multi‑channelled national television
broadcasting service has the same meaning as in Schedule 4.
simulcast‑equivalent period has the
same meaning as in Schedule 4.
simulcast period has the same meaning as in
Schedule 4.
26C
Licence area plans not required to deal with certain digital radio broadcasting
services
Commercial radio broadcasting services
(1) If:
(a) a commercial radio broadcasting
licence was in force immediately before the digital radio start‑up day
for the licence area; and
(b) the licence authorises the
licensee to provide digital commercial radio broadcasting services in the
licence area;
the relevant licence area plan is not required to deal with
those services.
(2) If:
(a) the ACMA allocates a digital
commercial radio broadcasting licence in accordance with subsection 35D(3); and
(b) the licence authorises the
licensee to provide digital commercial radio broadcasting services in the
licence area;
the relevant licence area plan is not required to deal
with those services.
Community radio broadcasting services
(3) If:
(a) a designated community radio
broadcasting licence was in force immediately before the digital radio start‑up
day for the licence; and
(b) the licence authorises the
licensee to provide digital community radio broadcasting services in the
licence area;
the relevant licence area plan is not required to deal
with those services.
26D
Licence area plans—how digital radio broadcasting services may be dealt with
(1) This section applies if a licence area
plan deals with:
(a) digital commercial radio
broadcasting services; or
(b) digital community radio
broadcasting services; or
(c) digital national radio
broadcasting services.
(2) The licence area plan is not required to
identify:
(a) individual digital commercial
radio broadcasting services; or
(b) individual digital community radio
broadcasting services; or
(c) individual digital national radio
broadcasting services.
(3) It is sufficient if the licence area plan
deals collectively with:
(a) the digital commercial radio
broadcasting services; and
(b) the digital community radio
broadcasting services; and
(c) the digital national radio
broadcasting services;
that, from time to time, are, or are to be, transmitted
under the digital radio multiplex transmitter licence or licences issued, or to
be issued, in relation to the area concerned.
27
Processes to be public
(1) In performing its functions under
sections 24, 25 and 26, the ACMA must make provision for wide public
consultation.
(2) The ACMA is to keep a record of, and make
available for public inspection, all advice received by the ACMA, and all
assumptions made by the ACMA, in performing its functions under sections 24,
25 and 26.
29
Designation of licence areas
(1) Before allocating a new commercial
television broadcasting licence, commercial radio broadcasting licence or
community broadcasting licence (other than a temporary community broadcasting
licence) that is a broadcasting services bands licence, the ACMA is to
designate one of the areas referred to in section 26 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.
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.
31
Minister may reserve capacity for national broadcasters or community
broadcasters
(1) The Minister may notify the ACMA in
writing that capacity in the broadcasting services bands is to be reserved for
a specified number of:
(a) national broadcasting services; or
(b) community broadcasting services
(other than services provided by temporary community broadcasting licensees);
but such a notice must not affect the provision of
services in accordance with a licence already allocated by the ACMA under this
Act or in accordance with a class licence.
(2) The ACMA must not, except in accordance
with section 34, allocate a licence or determine a class licence that
would allow the provision of broadcasting services (other than services
provided by national broadcasters or community broadcasting licensees) which
would make use of reserved capacity in the broadcasting services bands.
32
Reservations to be disallowable by the Parliament
A notice under section 31 is a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
33
Development of technical planning guidelines
The ACMA is to develop in writing
guidelines for the technical planning of individual services that use the
broadcasting services bands as a means of delivery.
34
Alternative uses of broadcasting services bands
(1) If:
(a) the ACMA has advertised under
section 38 for applications for the allocation of one or more commercial
television broadcasting licences or commercial radio broadcasting licences that
are broadcasting services bands licences and that licence is not allocated or
not all of those licences are allocated; or
(b) broadcasting services bands
spectrum is available in a licence area but has not been made available for
commercial television broadcasting licences or commercial radio broadcasting
licences; or
(c) broadcasting services bands
spectrum has been reserved under section 31 but has not been made
available for the purpose for which it was reserved; or
(d) broadcasting services bands
spectrum is available but the ACMA has not commenced or completed planning and
allocation processes in relation to that spectrum;
the ACMA may, by written instrument, determine that the
part or parts of the radiofrequency spectrum concerned is or are available for
allocation, for a period specified by the ACMA:
(e) for the temporary transmission or
the re‑transmission of programs; or
(ea) to temporary community
broadcasting licensees; or
(f) to providers of subscription
broadcasting services, subscription narrowcasting services or open
narrowcasting services; or
(fa) for the transmission of
datacasting services on a temporary basis; or
(g) for other purposes.
(2) In making a determination under subsection (1),
the ACMA is to have regard to:
(a) the possible future demand for the
use of that part of the radiofrequency spectrum; and
(b) such other matters as the ACMA
considers relevant.
(3) The ACMA may, by written instrument,
determine that a part or parts of the broadcasting services bands spectrum is
or are available for allocation for the purposes of the transmission of
datacasting services.
(4) In making a determination under subsection (3),
the ACMA is to have regard to:
(a) the possible future demand for the
use of that part of the radiofrequency spectrum for the provision of commercial
television broadcasting services; and
(b) such other matters as the ACMA
considers relevant.
(4A) Each part determined under subsection (3)
must be 7 MHz. However, this rule does not prevent a particular part from being
determined even if it adjoins:
(a) another part that is also
specified in the determination; or
(b) 2 other parts that are also
specified in the determination.
(5) For the purposes of the application of
this section to the availability of the spectrum before 1 January 2007, a datacasting service is a datacasting service provided under,
and in accordance with the conditions of, a datacasting licence.
(6) For the purposes of the application of
this section to the availability of the spectrum on or after 1 January 2007, a datacasting service is:
(a) a datacasting service provided
under, and in accordance with the conditions of, a datacasting licence; or
(b) a datacasting service provided under
any other licence allocated by the ACMA under this Act; or
(c) a datacasting service provided in
accordance with a class licence.
35
Notification of decisions under this Part
If the ACMA makes an instrument under
this Part, the ACMA must publish in the Gazette a notice stating:
(a) that the instrument has been made;
and
(b) the places where copies of the
instrument can be purchased.
Part 4—Commercial television broadcasting licences and commercial
radio broadcasting licences
35A
Reviews about the allocation of new commercial television broadcasting licences
Initial review
(1) Before the earliest digital television
switch‑over day, the Minister must cause to be conducted a review of:
(a) whether one or more commercial
television broadcasting licences that are broadcasting services bands licences
should be allocated under section 36 for a particular area or areas of
Australia; and
(b) if so, what variations (if any)
should be made to any licence area plans in force under section 26.
Subsequent reviews
(2) The Minister may cause to be conducted a
review of:
(a) whether one or more commercial
television broadcasting licences that are broadcasting services bands licences
should be allocated under section 36 for a particular area or areas of Australia;
and
(b) if so, what variations (if any)
should be made to any licence area plans in force under section 26.
(3) Subsection (2) does not authorise
the conduct of a review before the completion of the report of a review
conducted under subsection (1).
Conduct of a review
(4) The following matters must be taken into
account in conducting a review under subsection (1) or (2):
(a) the objects of this Act;
(b) the matters referred to in
paragraphs 23(a) to (f) in so far as they are relevant;
(c) the availability of radiofrequency
spectrum;
(d) any other relevant matters.
(5) A review under subsection (1) or (2)
must be conducted in a manner that provides for wide public consultation.
(6) The ACMA must make available such
information as is reasonably necessary for the conduct of a review under subsection (1)
or (2).
Report of a review
(7) The Minister must cause to be prepared a
report of a review under subsection (1) or (2).
(8) 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.
35B
Allocation of new commercial television broadcasting licences
(1) If:
(a) a review is conducted under
section 35A; and
(b) after the completion of the report
of the review, the Minister is satisfied that a commercial television
broadcasting licence should be allocated under section 36 for a particular
area of Australia;
the Minister may, within 3 years after the completion of
the report of the review, give the ACMA a written direction requiring the ACMA
to allocate the licence under section 36 within a specified period.
(2) The ACMA must comply with a direction
under subsection (1).
(3) The ACMA must not allocate a licence
under section 36 unless the ACMA is directed to do so under subsection (1)
of this section.
(4) If:
(a) a direction is given under subsection (1);
and
(b) as a result, the ACMA allocates a
commercial television broadcasting licence under section 36;
the licence is subject to the condition that the licensee
may only provide commercial television broadcasting services in digital mode
(within the meaning of Schedule 4).
35C
Digital radio moratorium
(1) During the digital radio moratorium
period for a licence area, the ACMA must not allocate, under subsection 36(1),
a commercial radio broadcasting licence to provide digital commercial radio
broadcasting services in the licence area.
(2) Subsection (1) has effect subject to
section 35D.
(3) For the purposes of this Act, the digital
radio moratorium period for a licence area is the 6‑year period
beginning at the start of the digital radio start‑up day for the licence
area.
35D
Exception to the digital radio moratorium—failure to provide a digital
commercial radio broadcasting service
Scope
(1) This section applies to a commercial
radio broadcasting licence if:
(a) the licence was in force
immediately before the digital radio start‑up day for the licence area;
and
(b) the licence authorises the
licensee to provide any digital commercial radio broadcasting services in the
licence area; and
(c) at a particular time (the relevant
time) during the digital radio moratorium period for the licence area,
the ACMA is satisfied that the licensee is not providing at least one digital
commercial radio broadcasting service under the licence in the licence area.
Licence ceases to authorise the provision of digital
commercial radio broadcasting services etc.
(2) As soon as practicable after the relevant
time, the ACMA must, by written notice given to the licensee, determine that:
(a) the licence ceases to authorise
the licensee to provide one or more digital commercial radio broadcasting
services in the licence area; and
(b) the licence is taken, for the
purposes of this Act, to have been allocated as a licence to provide an analog
commercial radio broadcasting service; and
(c) despite subsection 36A(5), the
licence is subject to the condition that the licensee may only provide an
analog commercial radio broadcasting service under the licence.
ACMA must allocate a new commercial radio broadcasting
licence for the licence area
(3) As soon as practicable after a notice
under subsection (2) is given to a licensee of a commercial radio
broadcasting licence (the first licence), the ACMA must:
(a) allocate, under subsection 36(1),
a single commercial radio broadcasting licence for the licence area of the
first licence; and
(b) allocate the licence as a licence
to provide digital commercial radio broadcasting services in that licence area.
ACMA may specify circumstances in which a licensee is
taken to be providing a digital commercial radio broadcasting service
(4) The ACMA may, by legislative instrument,
specify circumstances in which a commercial radio broadcasting licensee is
taken, for the purposes of paragraph (1)(c), to be providing a digital
commercial radio broadcasting service under the licence in the licence area.
(5) A copy of an instrument under
subsection (4) must be made available on the ACMA’s Internet site.
36 ACMA
to determine system for allocating licences
(1) The ACMA is to determine in writing a
price‑based system for allocating:
(a) commercial television broadcasting
licences that are broadcasting services bands licences; and
(b) commercial radio broadcasting
licences that are broadcasting services bands licences.
(2) The Minister may give specific directions
to the ACMA for the purpose of a determination.
(3) Directions may be to include in a
determination specified reserve prices for licences, and those reserve prices
may be different for licences in different licence areas.
(4) If a commercial television broadcasting
licence or a commercial radio broadcasting licence referred to in subsection (1)
is allocated, the ACMA must, unless the allocation system adopted was public,
publish in the Gazette the name of the successful applicant and the
amount that the applicant agreed to pay to the Commonwealth for the allocation
of the licence.
36A
Commercial radio broadcasting licences to provide analog or digital commercial
radio broadcasting services
Licences in force immediately before the commencement
of this section
(1) If a commercial radio broadcasting
licence was in force immediately before the commencement of this section, the
licence is taken, for the purposes of this Act, to have been allocated as a
licence to provide an analog commercial radio broadcasting service.
Licences allocated before the digital radio start‑up
day for the licence area
(2) If the ACMA allocates a commercial radio
broadcasting licence after the commencement of this section but before the
digital radio start‑up day for the licence area, the licence must be
allocated as a licence to provide an analog commercial radio broadcasting
service.
Licences allocated on or after digital radio start‑up
day for the licence area
(3) If the ACMA allocates a commercial radio
broadcasting licence on or after the digital radio start‑up day for the
licence area, the licence must be allocated as:
(a) a licence to provide an analog
commercial radio broadcasting service; or
(b) a licence to provide digital
commercial radio broadcasting services.
Licence conditions
(4) Subject to subsection (5), if a
commercial radio broadcasting licence is or was allocated as a licence to
provide an analog commercial radio broadcasting service, the licence is subject
to the condition that the licensee may only provide an analog commercial radio
broadcasting service under the licence.
(5) If:
(a) a commercial radio broadcasting
licence was in force immediately before the digital radio start‑up day
for the licence area; and
(b) the licence authorised the
licensee to provide an analog commercial radio broadcasting service in the
licence area;
subsection (4) ceases to apply in relation to the
licence at the start of the digital radio start‑up day for the licence
area.
(6) If a commercial radio broadcasting
licence is allocated as a licence to provide digital commercial radio
broadcasting services, the licence is subject to the condition that the
licensee may only provide digital commercial radio broadcasting services under
the licence.
Section 35D
(7) This section has effect subject to
section 35D.
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 formed in Australia or in an external Territory 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.
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
(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;
(ii) no licence for the
licence area previously held by the existing licensee has been cancelled
because of a breach of the condition set out in subsection (9);
(iii) no licence for the
licence area previously held by the existing licensee has been surrendered; or
(b) both:
(i) paragraph (a)
does not apply; and
(ii) the ACMA is satisfied
that there are exceptional circumstances.
Amalgamation of licence areas in some cases
(7) If:
(a) more than 30% of the licence area
population of a licence area is attributable to an overlap area; or
(b) a licence area is entirely within
another licence area;
this section applies as if the 2 licence areas were one.
Fee for additional licence
(8) On allocation of the additional licence,
the applicant must pay to the ACMA a fee determined by the ACMA. The fee must
not be more than the amount that, in the opinion of the ACMA, represents the
costs (including planning costs) incurred by the ACMA in allocating the
additional licence.
Licence conditions
(9) On the
allocation of the additional licence, it becomes a condition of both the parent
licence and the additional licence that the licensee will continue to provide at
least one service under each of those licences for at least 2 years after the
date of allocation of the additional licence.
Restrictions on transfer of licences
(10) During the period of 2 years after the
date of allocation of the additional licence, any attempt by any person to
transfer either the parent licence or the additional licence is of no effect
unless both of those licences are transferred at the same time by the same
person to the same transferee.
Section 37 restrictions apply
(11) This section has effect subject to section 37.
38B
Additional commercial television licences in 2‑station markets
(1) If:
(a) a particular licence area is the
licence area of only 2 commercial television broadcasting licences (the parent
licences) that are in force; and
(b) neither of those licences was
allocated under section 38A; and
(c) an additional commercial
television broadcasting licence can be allocated for the licence area;
then, within 90 days after the designated time for the
licence area:
(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 formed in Australia or an external Territory and has a share
capital; or
(e) each existing licensee may give
the ACMA a written notice stating that the licensee will apply separately for
an additional commercial television broadcasting licence for the licence area.
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 designated time
for the licence area, 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
designated time for the licence area, apply in writing to the ACMA for an
additional commercial television broadcasting licence for the licence area.
Allocation of additional licence to joint‑venture
company
(5) As soon as practicable after receiving an
application under subsection (2), the ACMA must allocate an additional
commercial television broadcasting licence to the joint‑venture company
for the licence area, so long as the ACMA is satisfied that the joint‑venture
company is jointly owned by the existing licensees.
Allocation of additional licence to existing licensee
(6) If the ACMA has received applications
from both of the existing licensees under subsection (3), the ACMA must
allocate an additional commercial television broadcasting licence to one of
those licensees for the licence area in accordance with a price‑based
system determined under subsection (10).
(7) If:
(a) each existing licensee gives a
notice under paragraph (1)(e); and
(b) by the end of the 12‑month
period beginning at the designated time for the licence area:
(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 designated time for the licence area, the ACMA
receives:
(i) an application from
one existing licensee (the first licensee) under subsection (3);
and
(ii) a notice from the
other existing licensee stating that it will not be applying under subsection (3);
the ACMA must, as soon as practicable after both have been
received, allocate an additional commercial television broadcasting licence to
the first licensee for the licence area.
(9) If only one
existing licensee gives a notice under paragraph (1)(e), then, as soon as
practicable after receiving an application under subsection (3) from that
licensee, the ACMA must allocate an additional commercial television
broadcasting licence to that licensee for the licence area.
Price‑based system for allocating licences where
separate applications have been received
(10) The ACMA may determine in writing a price‑based
system for allocating commercial television broadcasting licences under subsection (6).
(11) The Minister may give specific directions
to the ACMA for the purpose of a determination.
(12) Directions may be to include in a
determination specified reserve prices for licences, and those reserve prices
may be different for licences in different licence areas.
(13) If a commercial television broadcasting
licence is allocated under subsection (6), the ACMA must, unless the
allocation system adopted was public, publish in the Gazette:
(a) the name of the successful
applicant; and
(b) the amount that the applicant
agreed to pay to the Commonwealth for the allocation of the licence.
Amalgamation of licence areas in some cases
(14) The ACMA may, by writing, determine that,
if:
(a) more than 30% of the licence area
population of a specified licence area is attributable to a specified overlap
area; or
(b) a specified licence area is
entirely within another specified licence area;
this section applies as if the 2 licence areas were one.
(14A) If a determination is made under subsection (14)
for 2 licence areas that are remote licence areas (within the meaning of
Schedule 4) because of paragraph (14)(b), this section applies as if
the single licence area referred to in subsection (14) were the licence
area that is entirely within the other licence area.
(15) A determination under subsection (14)
has effect accordingly.
(16) A determination under subsection (14)
is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
Fee for additional licence
(17) On allocation of the additional licence
under subsection (5), (7), (8) or (9), the applicant must pay to the ACMA
a fee determined by the ACMA. The fee must not be more than the amount that, in
the opinion of the ACMA, represents the costs (including planning costs)
incurred by the ACMA in allocating the additional licence.
Licence conditions
(18) Each
additional licence allocated under this section is subject to the following
conditions:
(a) the licensee may only provide commercial
television broadcasting services in digital mode (within the meaning of
Schedule 4); and
(b) if the licence area for the
licence is wholly outside a remote licence area (within the meaning of Schedule 4)—the
licensee will commence to provide at least one commercial television
broadcasting service in SDTV digital mode (within the meaning of Schedule 4)
by whichever is the earlier of the following times:
(i) the time that is
notified in writing to the licensee by the ACMA;
(ii) the start of 1 January 2004; and
(c) if the licence area for the
licence is not of the kind mentioned in paragraph (b)—the licensee will
commence to provide at least one commercial television broadcasting service in
SDTV digital mode (within the meaning of Schedule 4) within 1 year of
being allocated the licence or within such longer period as is notified in
writing by the ACMA.
(19) Paragraphs 7(1)(i), 7(1)(l) and 7(1)(m) of
Schedule 2 do not apply to an additional licence allocated under this
section.
(20) On the
allocation of an additional licence under subsection (5), it becomes a
condition of:
(a) the additional licence; and
(b) each parent licence;
that the licensee concerned will continue to provide at
least one service under the licence concerned for at least 2 years after the
earliest occasion on which the licensee of the additional licence commences to
provide a commercial television broadcasting service under the additional
licence.
(21) On the allocation of an additional licence
under subsection (6), (7), (8) or (9), it becomes a condition of:
(a) the additional licence; and
(b) the
parent licence concerned;
that the licensee will continue to provide at least one
service under the licence concerned for at least 2 years after the earliest
occasion on which the licensee of the additional licence commences to provide a
commercial television broadcasting service under the additional licence.
(21A) The condition
specified in subsection (21B) applies if:
(a) a commercial television
broadcasting licence is allocated to a joint‑venture company under subsection (5);
and
(b) the licence is transferred to
another company (the transferee company); and
(c) an election is in force under
subclause 6(7B) of Schedule 4 in relation to one or both of the commercial
television broadcasting services provided under the licences referred to in subsection (1)
as the parent licences.
(21B) The licence held by the transferee company
is subject to the condition that the transferee company will continue to
transmit a commercial television broadcasting service provided under a parent
licence in relation to which that election is in force.
Restrictions on transfer of licences
(22) During the period of 2 years after the
date of allocation of an additional licence under subsection (5), any
attempt by any person to transfer the additional licence is of no effect.
(23) During the period of 2 years after the
date of allocation of an additional licence under subsection (6), (7), (8)
or (9), any attempt by any person to transfer either:
(a) the additional licence; or
(b) the parent licence concerned;
is of no effect unless both of those licences are
transferred at the same time by the same person to the same transferee.
Section 37 restrictions apply
(24) This section has effect subject to section 37.
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.
Designated time
(26) In this
section:
designated time, in relation to a licence
area, means:
(a) if the licence area is wholly
outside a remote licence area (within the meaning of Schedule 4)—the
commencement of this section; or
(b) in any other case—the time
determined by the ACMA in relation to the licence area under subsection (27).
(27) The ACMA may, by writing, determine a time
in relation to a licence area for the purposes of the definition of designated
time in paragraph (26)(b).
(28) For a licence area that is not a remote
licence area (within the meaning of Schedule 4), the time determined under
subsection (27) must be no later than 1 January 2006.
39
Additional commercial radio licences in single markets
Conditions for allocation of additional licence
(1) If:
(a) a particular licence area is the
licence area of only one commercial radio broadcasting licence (the parent
licence) that is in force; and
(b) a service is being provided under
the parent licence; and
(c) the licence area for the parent
licence does not have an excessive overlap area, as determined under subsection (5);
and
(d) the licensee requests the ACMA, in
writing, to allocate to the licensee, for the same licence area, another
commercial radio broadcasting licence that is a broadcasting services bands
licence; and
(e) in the opinion of the ACMA,
suitable broadcasting services bands spectrum is available for providing
another commercial radio broadcasting service in the same licence area;
the ACMA must allocate an additional licence to the
applicant for the same licence area as soon as practicable.
Time limit for applications
(2) An application under subsection (1)
must be made within 60 days after:
(a) the commencement of this section;
or
(b) the time when paragraphs (1)(a),
(b) and (c) are first satisfied in relation to the parent licence;
whichever is later.
(3) If the conditions in paragraphs (1)(a),
(b), (c) and (e) are not all satisfied at the time when the application is
made, but at a later time they are all satisfied, then the ACMA is under an
obligation at that later time to allocate the additional licence (unless the
application has been withdrawn).
Matters that ACMA must take into account
(4) The matters that the ACMA must take into
account in forming an opinion for the purposes of paragraph (1)(e) include
the following:
(a) any relevant plan under section 25;
(b) any relevant plan under section 26;
(c) any relevant capacity that has
been reserved under section 31.
Excessive overlap area
(5) The
licence area for the parent licence has an excessive overlap area if:
(a) more than 30% of the licence area
population of the licence area of the parent licence is attributable to an area
that overlaps with the licence area of another commercial radio broadcasting
licence; and
(b) at least one of the following
situations exists:
(i) more than 30% of the
licence area population of the licence area of that other licence is also
attributable to the area that overlaps with the licence area of the parent licence;
(ii) more than one
commercial radio broadcasting licence is in force with the same licence area as
that other licence.
Technical specifications for additional licence
(6) The ACMA must make a determination in
writing setting out the technical specifications that apply to the additional
licence. The ACMA is not required to make the determination if a plan under
section 26 applies to the licence area of the additional licence.
(7) For the purposes of this Act and section 109
of the Radiocommunications Act 1992, the technical specifications are
taken to have been determined under section 26 of this Act.
Fee for additional licence
(8) On allocation of the additional licence,
the applicant must pay to the ACMA a fee determined by the ACMA. The fee must
not be more than the amount that, in the opinion of the ACMA, represents the
costs (including planning costs) incurred by the ACMA in allocating the
additional licence.
Licence conditions
(9) On the allocation of the additional
licence, it becomes a condition of both the parent licence and the additional
licence that the licensee will continue to provide services under those
licences for at least 2 years after the date of allocation of the additional
licence.
Restrictions on transfer of licences
(10) During the period of 2 years after the
date of allocation of the additional licence, any attempt by any person to
transfer either the parent licence or the additional licence is of no effect
unless both of those licences are transferred at the same time by the same
person to the same transferee.
Section 37 restrictions apply
(11) This section has effect subject to section 37.
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) Subject to section 28, the ACMA may
allocate to a person, on application in writing by the person, a commercial
television broadcasting licence or a commercial radio broadcasting licence that
is not a licence referred to in subsection 36(1).
(1A) Licences under subsection (1) are to
be allocated on the basis of one licence per service.
(2) Before allocating a licence referred to
in subsection (1), the ACMA is to designate a particular area in Australia
as the licence area of the licence.
(3) Applications must:
(a) be in accordance with a form
approved in writing by the ACMA; and
(b) be accompanied by the application
fee determined in writing by the ACMA.
(4) If the ACMA makes a decision under subsection (1)
or (2), the ACMA must publish in the Gazette details of the allocation
or the designation of a licence area.
Referral of application to the Minister
(5) Before allocating a commercial television
broadcasting licence under subsection (1), the ACMA must refer the
application to the Minister.
(6) If an application for a commercial
television broadcasting licence is referred to the Minister under subsection (5),
the ACMA must not make a decision about the application until the Minister:
(a) gives a direction under subsection (7)
in relation to the application; or
(b) gives a notice under subsection (9)
in relation to the application.
(7) If:
(a) an application for a commercial
television broadcasting licence is referred to the Minister under subsection (5);
and
(b) the Minister is of the opinion
that the proposed commercial television broadcasting service is likely to be
contrary to the public interest;
the Minister must, by written notice given to the ACMA,
direct the ACMA not to allocate the licence to the applicant.
(8) The ACMA must comply with a direction
under subsection (7).
(9) If:
(a) an application for a commercial
television broadcasting licence is referred to the Minister under subsection (5);
and
(b) the Minister is not of the opinion
that the proposed commercial television broadcasting service is likely to be
contrary to the public interest;
the Minister must, by written notice given to the ACMA,
inform the ACMA that he or she has no objection to the allocation of the
licence to the applicant.
Minister may request additional information
(10) If an application is referred to the
Minister under subsection (5), and the Minister considers that additional
information is required before the Minister can decide whether to:
(a) give a direction under subsection (7)
in relation to the application; or
(b) give a notice under subsection (9)
in relation to the application;
the Minister may, by written notice given to the applicant
within 30 days after the day on which the application is referred to the
Minister, request the applicant to provide that information.
(11) If the Minister requests additional
information under subsection (10), the Minister must give the ACMA a copy
of the request.
Decision to be made within 60 days
(12) If the Minister does not, within 60 days
after the day on which:
(a) an application is referred to the
Minister under subsection (5); or
(b) if the Minister requests
additional information under subsection (10)—that additional information
is received;
do either of the following:
(c) give a direction under subsection (7)
in relation to the application;
(d) give a notice under subsection (9)
in relation to the application;
then the Minister is taken to have given a notice under subsection (9)
in relation to the application.
Licence condition
(13) If the ACMA allocates a commercial
television broadcasting licence under subsection (1), the licence is
subject to the condition that the licensee may only provide the commercial
television broadcasting service concerned in digital mode (within the meaning
of Schedule 4).
41
When persons are regarded as suitable
(1) For the purposes of this Part, a company
is a suitable licensee or a suitable applicant for a licence if the ACMA has
not decided that subsection (2) applies to the company.
(2) The ACMA may, if it is satisfied that
allowing a particular company to provide or continue to provide commercial
broadcasting services under a licence would lead to a significant risk of:
(a) an offence against this Act or the
regulations being committed; or
(aa) a breach of a civil penalty
provision occurring; or
(b) a breach of the conditions of the
licence occurring;
decide that this subsection applies to the company.
(3) In deciding whether such a risk exists,
the ACMA is to take into account:
(a) the business record of the
company; and
(b) the company’s record in situations
requiring trust and candour; and
(c) the business record of each person
who is, or would be, if a licence were allocated to the applicant, in a
position to control the licence; and
(d) the record in situations requiring
trust and candour of each such person; and
(e) whether the company, or a person
referred to in paragraph (c) or (d), has been convicted of an offence
against this Act or the regulations; and
(f) whether a civil penalty order has
been made against:
(i) the company; or
(ii) a person referred to
in paragraph (c) or (d).
(4) This section does not affect the operation
of Part VIIC of the Crimes Act 1914 (which includes provisions
that, in certain circumstances, relieve persons from the requirement to
disclose spent convictions and require persons aware of such convictions to
disregard them).
41A
Services authorised by commercial television broadcasting licences before 1 January 2009
Licences in force immediately before 1 January 2007
(1) If:
(a) a commercial television
broadcasting licence for a licence area was in force immediately before 1 January 2007; and
(b) the licence authorised the
licensee to provide a commercial television broadcasting service (the core
commercial television broadcasting service) in the licence area;
the licence is taken to authorise the licensee to provide
the following 2 services in the licence area:
(c) the core commercial television
broadcasting service;
(d) a HDTV multi‑channelled
commercial television broadcasting service;
during the period ending immediately before 1 January 2009.
Licences allocated on or after 1 January 2007
(2) If a commercial television broadcasting
licence for a licence area is allocated on or after 1 January 2007 but before 1 January 2009, the licence authorises the licensee to provide the
following 2 services in the licence area:
(a) a commercial television
broadcasting service (the core commercial television broadcasting service)
transmitted in SDTV digital mode;
(b) a HDTV multi‑channelled
commercial television broadcasting service;
during the period ending immediately before 1 January 2009.
Licences allocated under subsection 40(1)
(3) This section does not apply to a
commercial television broadcasting licence allocated under subsection 40(1).
Definitions
(4) In this section:
HDTV multi‑channelled commercial television
broadcasting service has the same meaning as in Schedule 4.
SDTV digital mode has the same meaning as in
Schedule 4.
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.
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.
Section 35D
(6) This section has effect subject to
section 35D.
Subsection 40(1) licences
(7) This section does not apply to a
commercial radio broadcasting licence allocated under subsection 40(1).
42
Conditions of commercial broadcasting licences
(1) Each commercial television broadcasting
licence is subject to:
(a) the conditions set out in Part 3
of Schedule 2; and
(b) such other conditions as are
imposed under section 43.
(2) Each commercial radio broadcasting
licence is subject to:
(a) the conditions set out in Part 4
of Schedule 2; and
(b) such other conditions as are
imposed under section 43.
43 ACMA
may impose additional conditions
(1) The ACMA may, by notice in writing given
to a commercial television broadcasting licensee or a commercial radio
broadcasting licensee, vary or revoke a condition of the licence or impose an
additional condition on the licence.
(2) If the ACMA proposes to vary or revoke a
condition or to impose a new condition, the ACMA must:
(a) give to the licensee written
notice of its intention; and
(b) give to the licensee a reasonable
opportunity to make representations to the ACMA in relation to the proposed
action; and
(c) publish the proposed changes in
the Gazette.
(3) This section does not allow the ACMA to
vary or revoke a condition set out in Part 3 or 4 of Schedule 2.
(4) If the ACMA varies or revokes a condition
or imposes a new condition, the ACMA must publish the variation, the fact of
the revocation or the new condition, as the case may be, in the Gazette.
(5) Action taken under subsection (1)
must not be inconsistent with:
(a) determinations and clarifications
under section 19; or
(b) conditions set out in Part 3
or 4 of Schedule 2.
43A
Material of local significance—regional aggregated commercial television
broadcasting licences
(1) The ACMA must ensure that, at all times
on and after 1 January 2008, there is in force under section 43 a
condition that has the effect of requiring the licensee of a regional
aggregated commercial television broadcasting licence to broadcast to each
local area, during such periods as are specified in the condition, at least a
minimum level of material of local significance.
(2) For the purposes of subsection (1),
a regional aggregated commercial television broadcasting licence
is a commercial television broadcasting licence for any of the following
licence areas:
(a) Northern New South Wales;
(b) Southern New South Wales;
(c) Regional Victoria;
(d) Eastern Victoria;
(e) Western Victoria;
(f) Regional Queensland;
(g) Tasmania.
(3) The condition must define local
area and material of local significance for the purposes
of the condition. The definition of material of local significance
must be broad enough to cover news that relates directly to the local area
concerned.
(4) To avoid doubt, this section does not:
(a) prevent the condition from setting
out different requirements for different types of material; or
(b) prevent the condition from
specifying periods that recur (for example, the hours between 7 am and 10 am Monday to Friday); or
(c) prevent the condition from setting
out different requirements for different periods; or
(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.
43B
Local presence—regional commercial radio broadcasting licences
(1) The ACMA must ensure that, at all times
after the commencement of this section, 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, then, after the
occurrence of the event, the licensee must maintain at least the existing level
of local presence.
(2) The condition must define existing
level of local presence for the purposes of the condition.
(3) The definition must deal with:
(a) staffing levels; and
(b) studios and other production
facilities.
(4) Subsection (3) does not limit subsection (2).
(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.
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.
Applicable number
(3) For the purposes of the application of subsection (1)
to a regional commercial radio broadcasting licence, the applicable
number is:
(a) 4.5; or
(b) if the Minister, by legislative
instrument, declares that another number is the applicable number for regional
commercial radio broadcasting licences generally—the other number; or
(c) if:
(i) the Minister, by legislative
instrument, declares that another number is the applicable number for a
specified class of regional commercial radio broadcasting licences; and
(ii) the regional
commercial radio broadcasting licence is included in that class;
the other number.
(4) Before 30 June 2007, the Minister must cause to be conducted a review of:
(a) whether:
(i) a declaration should
be made under paragraph (3)(b); or
(ii) one or more
declarations should be made under subparagraph (3)(c)(i); and
(b) the number or numbers that should
be specified in the declaration or declarations concerned; and
(c) in the case of a declaration or
declarations under subparagraph (3)(c)(i)—the class or classes that should
be specified in the declaration or declarations concerned.
(4A) The Minister must cause to be prepared a
report of a review under subsection (4).
(4B) The Minister must cause copies of a report
to be laid before each House of the Parliament within 15 sitting days of that
House after the completion of the report.
(4C) Before the end of whichever of the
following periods ends first:
(a) the period of 15 sitting days of
the House of Representatives after the completion of the report;
(b) the period of 15 sitting days of
the Senate after the completion of the report;
the Minister must:
(c) either:
(i) make a declaration
under paragraph (3)(b); or
(ii) make one or more
declarations under subparagraph (3)(c)(i); and
(d) cause a copy of each such
declaration to be laid before each House of the Parliament in accordance with
section 38 of the Legislative Instruments Act 2003.
Section 43 powers etc.
(5) To avoid doubt, this section does not
create any obligations under subsection 43(2) that would not exist apart from
this section.
(6) Subsection 43(5) does not apply to the
condition.
(7) This section does not limit the powers
conferred on the ACMA by section 43 to impose, vary or revoke other
conditions.
Definitions
(8) In this section:
daytime hours means the hours:
(a) beginning at 6 am each day or, if
another time is prescribed, beginning at that prescribed time each day; and
(b) ending at 6 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same
day.
metropolitan licence area means:
(a) a licence area in which is situated
the General Post Office of the capital city of:
(i) New South Wales; or
(ii) Victoria; or
(iii) Queensland; or
(iv) Western Australia; or
(v) South Australia; or
(b) the licence area known as Western
Suburbs Sydney RA1.
regional commercial radio broadcasting licence
means a commercial radio broadcasting licence that has a regional licence area.
regional licence area means a licence area
that is not a metropolitan licence area.
43D
Special licence conditions relating to digital radio commercial broadcasting
services
Scope
(1) This section applies to a commercial
radio broadcasting licence (the first licence) if:
(a) the first licence authorises the
licensee to provide one or more digital commercial radio broadcasting services;
and
(b) the first licence was not
allocated under subsection 40(1).
Transmission by multiplex transmitter
(2) The first licence is subject to the
condition that the licensee must not provide a digital commercial radio
broadcasting service under the first licence unless:
(a) the service is transmitted using a
multiplex transmitter; and
(b) the operation of the multiplex
transmitter is authorised by a digital radio multiplex transmitter licence.
Use of more than one‑ninth of multiplex capacity
(3) If there is only one digital radio
multiplex transmitter licence for the licence area of the first licence, the
first licence is subject to the condition that the licensee of the first
licence must not use more than one‑ninth of multiplex capacity under the
digital radio multiplex transmitter licence for the purpose of providing, under
the first licence, a digital commercial radio broadcasting service that passes
the shared content test in relation to an analog commercial radio broadcasting
service provided under:
(a) the first licence; or
(b) another commercial radio
broadcasting licence that has the same licence area as the first licence.
(4) If there are 2 or more digital radio
multiplex transmitter licences for the licence area of the first licence, the
first licence is subject to the condition that the licensee of the first
licence must not use more than the designated fraction of the total multiplex
capacities under those digital radio multiplex transmitter licences for the
purpose of providing, under the first licence, a digital commercial radio
broadcasting service that passes the shared content test in relation to an
analog commercial radio broadcasting service provided under:
(a) the first licence; or
(b) another commercial radio
broadcasting licence that has the same licence area as the first licence.
(5) For the purposes of subsection (4),
the designated fraction of the total multiplex capacities under
those digital radio multiplex transmitter licences is as follows:
Shared content test
(6) For the purposes of subsections (3)
and (4), a digital commercial radio broadcasting service passes the
shared content test at a particular time in relation to an analog
commercial radio broadcasting service if:
(a) the program content of at least
50% of the total number of hours of programs broadcast by the first‑mentioned
service during daytime/evening hours during the 6‑month period ending at
that time;
were the same as:
(b) the program content of at least
50% of the total number of hours of programs broadcast by the other service
during daytime/evening hours during the 6‑month period ending at that
time.
(7) For the purposes of subsection (6),
ignore the following:
(a) advertising or sponsorship
material (whether or not of a commercial kind);
(b) a promotion for a radio program or
a radio broadcasting service;
(c) any digital program enhancement
content in relation to a radio program;
(d) community information material or
community promotional material;
(e) a news break or weather bulletin;
(f) any other similar material.
Definitions
(8) In this section:
category 1 digital radio multiplex transmitter
licence has the same meaning as in the Radiocommunications Act 1992.
category 2 digital radio multiplex transmitter
licence has the same meaning as in the Radiocommunications Act 1992.
daytime/evening hours means the hours:
(a) beginning at 6 am each day; and
(b) ending at midnight on the same day.
digital radio multiplex transmitter licence
means:
(a) a category 1 digital radio
multiplex transmitter licence; or
(b) a category 2 digital radio
multiplex transmitter licence.
44
Matters to which conditions may relate
(1) Conditions of commercial television
broadcasting licences and commercial radio broadcasting licences must be
relevant to the broadcasting services to which those licences relate.
(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.
45
Duration of licences
Subject to Part 10, commercial
television broadcasting licences and commercial radio broadcasting licences
remain in force
for 5 years.
46
Applications for renewal
(1) The ACMA may renew a commercial
television broadcasting licence or a commercial radio broadcasting licence if:
(a) the licensee makes an application
for renewal of the licence, in accordance with a form approved in writing by
the ACMA, at least 20 weeks but not more than one year before the licence is
due to expire; and
(b) the application is accompanied by
the renewal fee determined in writing by the ACMA.
(2) If the ACMA receives an application for
renewal, the ACMA must notify in the Gazette the fact that the
application has been made.
47 ACMA
to renew licences unless it is aware of special circumstances
(1) Subject to subsection (2), if the ACMA
receives an application under section 46, the ACMA must, by notice in
writing given to the licensee, renew the licence for a period of 5 years.
(2) The ACMA must refuse to renew a licence
if the ACMA decides that subsection 41(2) applies to the licensee.
(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.
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 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 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.
51A
This Part does not apply to certain channel B datacasting transmitter licences
This Part does not apply to a channel B
datacasting transmitter licence unless the relevant transmitter, or any of the
relevant transmitters, is operated for transmitting a datacasting service that
is capable of being received by a domestic digital television receiver.
52
Changes in licence area populations not to put persons in breach of this Part
If:
(a) the ACMA makes a new determination
of the licence area population of a licence area or of the population of Australia;
and
(b) as a result of the determination,
a person would be in breach of subsection 53(1) or 55(1) or (2);
those subsections continue to apply to the person as if
the previous determination remained in force.
52A
Newspapers—additional constitutional basis
(1) Without limiting its effect apart from
this section, this Act also has effect as provided by this section.
(2) This Act also has the effect it would
have if each reference in this Part to a newspaper were, by express provision,
confined to a newspaper where:
(a) the publisher of the newspaper is
a constitutional corporation; or
(b) at least part of the circulation
of the newspaper is:
(i) in 2 or more States;
or
(ii) in a Territory; or
(iii) in a foreign country.
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.
Subdivision C—Commercial radio broadcasting licences and restricted
datacasting licences
54B
Limitation on control of commercial radio broadcasting licences and restricted
datacasting licences during the digital radio moratorium period
(1) This section applies in relation to a
commercial radio broadcasting licence if the licence was in force immediately
before the digital radio start‑up day for the licence area.
(2) During the digital radio moratorium
period for the licence area, a person must not be in a position to exercise
control of:
(a) the commercial radio broadcasting
licence; and
(b) a restricted datacasting licence.
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.
56
Limitation on numbers of directorships—radio
A person
must not be:
(a) a director of a company that is,
or of 2 or more companies that are, between them, in a position to exercise
control of more than 2 commercial radio broadcasting licences in the same
licence area; or
(b) a
director of a company that is, or of 2 or more companies that are, between
them, in a position to exercise control of 2 commercial radio broadcasting
licences in a licence area and in a position to exercise control of another
commercial radio broadcasting licence in the same licence area; or
(c) in a position to exercise control
of 2 commercial radio broadcasting licences in a licence area and a director of
a company that is in a position to exercise control of another commercial radio
broadcasting licence in the same licence area.
Subdivision B—Television and datacasting
56A
Limitation on directorships—television and datacasting
(1) A person must not be a director of:
(a) a company that is in a position to
exercise control of a commercial television broadcasting licence; and
(b) a company that is in a position to
exercise control of a datacasting transmitter licence.
(2) A person must not:
(a) be in a position to exercise
control of a commercial television broadcasting licence; and
(b) be a director of a company that is
in a position to exercise control of a datacasting transmitter licence.
(3) A person must not:
(a) be a director of a company that is
in a position to exercise control of a commercial television broadcasting
licence; and
(b) be in a position to exercise
control of a datacasting transmitter licence.
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
(b) the
circulation of the newspaper within that licence area is less than 2% of the
licence area population;
the ACMA must remove the name of the newspaper from the
Register in relation to the licence area.
(4C) Despite subsections (3) and (4A), if
the ACMA is satisfied that:
(a) a person (either alone or together
with one or more other persons) has entered into, begun to carry out or carried
out a scheme to publish a newspaper; and
(b) the person did so for the sole or
dominant purpose of ensuring that the number of points in the licence area of a
commercial radio broadcasting licence would be increased or maintained;
the ACMA may refuse to enter the name of the newspaper in
the Register.
(4D) If:
(a) a newspaper is entered in the
Register; and
(b) the ACMA is satisfied that:
(i) a person (either alone
or together with one or more other persons) entered into, began to carry out or
carried out a scheme to publish the newspaper; and
(ii) the person did so for
the sole or dominant purpose of ensuring that the number of points in the
licence area of a commercial radio broadcasting licence would be increased or
maintained;
the ACMA may remove the name of the newspaper from the
Register.
(5) The Register may be maintained by
electronic means.
(6) The Register is to be made available for
inspection on the Internet.
(7) The ACMA may supply copies of or extracts
from the Register certified by a member, and a copy or extract so certified is
admissible in evidence in all courts and proceedings without further proof or
production of the original.
(8) In this section:
points has the same meaning as in Division 5A.
scheme has the same meaning as in Division 5A.
Division 5A—Media diversity
Subdivision A—Introduction
61AA
Definitions
In this Division:
commencement day means the day on which
Schedule 2 to the Broadcasting Services Amendment (Media Ownership) Act
2006 commences.
controller of a media group means a person
who is in a position to exercise control of each media operation in the media
group.
daytime/evening hours means the hours:
(a) beginning at 6 am each day; and
(b) ending at midnight on the same day.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
interest in a share means a legal or
equitable interest in the share.
media group means a group of 2 or more media
operations.
media operation means:
(a) a commercial television
broadcasting licence; or
(b) a commercial radio broadcasting
licence; or
(c) a newspaper that is associated
with the licence area of a commercial television broadcasting licence or a
commercial radio broadcasting licence.
metropolitan licence area means:
(a) a licence area in which is
situated the General Post Office of the capital city of:
(i) New South Wales; or
(ii) Victoria; or
(iii) Queensland; or
(iv) Western Australia; or
(v) South Australia; or
(b) the licence area known as Western
Suburbs Sydney RA1.
name of a commercial television broadcasting
licence or a commercial radio broadcasting licence means the service licence
number of the licence.
points, in relation to the licence area of a
commercial radio broadcasting licence, has the meaning given by section 61AC.
regional licence area means a licence area
that is not a metropolitan licence area.
Register means the Register of Controlled
Media Groups maintained under section 61AU.
registered controller of a registered media
group means a person whose name is entered in the Register as a controller of
the media group.
registered media group means a media group
that is entered in the Register.
registrable media group, in relation to the
licence area of a commercial radio broadcasting licence, means a media group
covered by item 1 of the table in subsection 61AC(1) in its application to
that licence area. For this purpose, disregard subsection 61AC(2).
scheme means:
(a) any agreement, arrangement,
understanding, promise or undertaking, whether express or implied and whether
or not enforceable, or intended to be enforceable, by legal proceedings; and
(b) any scheme, plan, proposal,
action, course of action or course of conduct, whether unilateral or otherwise.
shared content test has the meaning given by
section 61AE.
statutory control rules has the meaning given
by section 61AD.
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):
|
Points
|
|
Item
|
This ...
|
is worth ...
|
|
1
|
a group of 2 or more media operations, where:
(a) a person is in a position to exercise control of each of
those media operations; and
(b) each of those media operations complies with the
statutory control rules; and
(c) if a commercial television broadcasting licence is in the
group—more than 50% of the licence area population of the first radio licence
area is attributable to the licence area of the commercial television
broadcasting licence; and
(d) if a commercial radio broadcasting licence is in the
group—the licence area of the commercial radio broadcasting licence is, or is
the same as, the first radio licence area; and
(e) if a newspaper is in the group—the newspaper is
associated with the first radio licence area
|
1 point.
|
|
2
|
a commercial radio broadcasting licence, where:
(a) the licence complies with the statutory control rules;
and
(b) the licence area of the licence is, or is the same as,
the first radio licence area; and
(c) item 1 does not apply to the licence
|
1 point.
|
|
3
|
a newspaper, where:
(a) the newspaper complies with the statutory control rules;
and
(b) the newspaper is associated with the first radio licence
area; and
(c) item 1 does not apply to the newspaper
|
1 point.
|
|
4
|
a group of 2 or more commercial television broadcasting
licences, where:
(a) each of those licences complies with the statutory
control rules; and
(b) more than 50% of the licence area population of the first
radio licence area is attributable to the licence area of each of those
commercial television broadcasting licences; and
(c) the core commercial television broadcasting services to
which those commercial television broadcasting licences relate pass the
shared content test in relation to each other; and
(d) item 1 does not apply to any of those commercial
television broadcasting licences
|
1 point.
|
|
5
|
a commercial television broadcasting licence, where:
(a) the licence complies with the statutory control rules;
and
(b) more than 50% of the licence area population of the first
radio licence area is attributable to the licence area of the commercial
television broadcasting licence; and
(c) none of the commercial television broadcasting services
provided under the licence passes the shared content test in relation to any
of the commercial television broadcasting services provided under another
commercial television broadcasting licence, where more than 50% of the
licence area population of the first radio licence area is attributable to
the licence area of the other commercial television broadcasting licence; and
(d) item 1 does not apply to the first‑mentioned
licence
|
1 point.
|
(2) If, apart from this subsection, all the
media operations in a group of media operations mentioned in an item of the
table are also in one or more other groups mentioned in an item of the table,
then, for the purposes of subsection (1), ignore the existence of:
(a) if one of the groups has the
highest number of media operations—the remaining group or groups; or
(b) if 2 or more of the groups have an
equal highest number of media operations:
(i) all but one of the
groups that have an equal highest number of media operations; and
(ii) the remaining group or
groups; or
(c) if the groups have an equal number
of media operations—all but one of those groups.
61AD
Statutory control rules
For the purposes of this Division, a
media operation complies with the statutory control rules if, and
only if:
(a) no person is in breach of a
prohibition in Division 2 or 3 that relates directly or indirectly to the
media operation; or
(b) a person is in breach of a
prohibition in Division 2 or 3 that relates directly or indirectly to the
media operation, but the ACMA has approved the breach under section 67.
Note: Section 67 is about approval of temporary
breaches.
61AE
Shared content test
(1) For the purposes of this Division, a
commercial television broadcasting service passes the shared content test
at a particular time in relation to another commercial television broadcasting
service if:
(a) the program content of at least
50% of the total number of hours of programs broadcast by the first‑mentioned
service during daytime/evening hours during the 6‑month period ending at
that time;
were the same as:
(b) the program content of at least
50% of the total number of hours of programs broadcast by the other service
during daytime/evening hours during the 6‑month period ending at that
time.
(2) For the purposes of subsection (1),
ignore the following:
(a) advertising or sponsorship
material (whether or not of a commercial kind);
(b) a promotion for a television
program or a television broadcasting service;
(c) community information material or
community promotional material;
(d) a news break or weather bulletin;
(e) any other similar material.
(3) For the purposes of subsection (1),
ignore any material covered by paragraph 6(8)(b), (c) or (d) of Schedule 4.
61AEA
Unacceptable 3‑way control situation
For the purposes of this Division, an unacceptable
3‑way control situation exists in relation to the licence area of
a commercial radio broadcasting licence (the first radio licence area)
if a person is in a position to exercise control of:
(a) a commercial television
broadcasting licence, where more than 50% of the licence area population of the
first radio licence area is attributable to the licence area of the commercial
television broadcasting licence; and
(b) a commercial radio broadcasting
licence, where the licence area of the commercial radio broadcasting licence
is, or is the same as, the first radio licence area; and
(c) a newspaper that is associated
with the first radio licence area.
61AF
Overlapping licence areas
Section 51 does not apply to this
Division.
Note: Section 51 is about overlapping licence
areas.
Subdivision B—Prohibition of transactions that result in an unacceptable
media diversity situation coming into existence etc.
61AG
Prohibition of transactions that result in an unacceptable media diversity
situation coming into existence—offence
A person commits an offence if:
(a) one or more transactions take
place on or after the commencement day; and
(b) the
transactions have the result that:
(i) an unacceptable media
diversity situation comes into existence in relation to the licence area of a
commercial radio broadcasting licence; or
(ii) if an unacceptable media
diversity situation already exists in relation to the licence area of a
commercial radio broadcasting licence—there is a reduction in the number of
points in the licence area; and
(c) the person was:
(i) a party to the
transactions; or
(ii) in a position to
prevent the transactions taking place; and
(d) the ACMA has not approved the
transactions under section 61AJ.
Penalty: 20,000 penalty units.
61AH
Prohibition of transactions that result in an unacceptable media diversity
situation coming into existence—civil penalty
(1) This section applies if:
(a) one or more transactions take
place on or after the commencement day; and
(b) the transactions have the result
that:
(i) an unacceptable media
diversity situation comes into existence in relation to the licence area of a
commercial radio broadcasting licence; or
(ii) if an unacceptable
media diversity situation already exists in relation to the licence area of a
commercial radio broadcasting licence—there is a reduction in the number of
points in the licence area; and
(c) the ACMA has not approved the
transactions under section 61AJ.
(2) A person must not be:
(a) a party to the transactions; or
(b) in a position to prevent the
transactions taking place.
(3) Subsection (2) is a civil penalty provision.
61AJ
Prior approval of transactions that result in an unacceptable media diversity
situation coming into existence etc.
(1) A person may, before a transaction takes
place that would place a person in breach of section 61AG or 61AH, make an
application to the ACMA for an approval of the transaction.
(2) An application is to be made in
accordance with a form approved in writing by the ACMA.
(3) If the ACMA considers that additional
information is required before the ACMA can make a decision on an application,
the ACMA may, by written notice given to the applicant within 30 days after
receiving the application, request the applicant to provide that information.
(4) If, after receiving an application, the
ACMA is satisfied that:
(a) if the transaction took place, it
would place a person in breach of section 61AG or 61AH; and
(b) either:
(i) the applicant; or
(ii) another person;
will take action, within a
period of not longer than 2 years, to ensure that:
(iii) an unacceptable media
diversity situation does not exist in relation to the licence area concerned;
or
(iv) if an unacceptable
media diversity situation already exists in relation to the licence area
concerned—there is not a reduction in the number of points in the licence area
concerned;
the ACMA may, by written notice given to the applicant:
(c) approve the transaction; and
(d) if subparagraph (b)(i)
applies—specify a period within which action must be taken by the applicant to
ensure that:
(i) an unacceptable media
diversity situation does not exist in relation to the licence area concerned;
or
(ii) if an unacceptable
media diversity situation already exists in relation to the licence area
concerned—there is not a reduction in the number of points in the licence area
concerned; and
(e) if subparagraph (b)(ii)
applies—inform the applicant accordingly.
(5) The period specified in the notice must
be at least one month, but not longer than 2 years.
(6) The ACMA may specify in a notice given to
an applicant the action that the ACMA considers the applicant must take to
ensure that:
(a) an unacceptable media diversity
situation does not exist in relation to the licence area concerned; or
(b) if an unacceptable media diversity
situation already exists in relation to the licence area concerned—there is not
a reduction in the number of points in the licence area concerned.
(7) In deciding whether to approve a
transaction, the ACMA may have regard to:
(a) any relevant undertakings that:
(i) have been accepted by
the ACMA under section 61AS; and
(ii) have not been
withdrawn or cancelled; and
(b) such other matters (if any) as the
ACMA considers relevant.
(8) If the ACMA refuses to approve a
transaction, the ACMA must give written notice of the refusal to the applicant.
(9) The ACMA must deal with applications
under subsection (1) in order of receipt.
(10) If the ACMA receives an application under subsection (1),
the ACMA must use its best endeavours to make a decision on the application
within 45 days after receipt of the application.
61AK
Extension of time for compliance with prior approval notice
(1) A person who has been given a notice
under section 61AJ may, within 3 months before the end of the period
specified in the notice but not less than one month before the end of that period,
apply in writing to the ACMA for an extension of that period.
(2) The ACMA may grant an extension if it is
of the opinion that an extension is appropriate in all the circumstances.
(3) If the ACMA considers that additional
information is required before the ACMA can make a decision on an application,
the ACMA may, by written notice given to the applicant within 30 days after
receiving the application, request the applicant to provide that information.
(4) The ACMA must not grant more than one
extension, and the period of any extension must not exceed:
(a) the period originally specified in
the notice; or
(b) one year;
whichever is the lesser period.
(5) In deciding whether to grant an extension
to an applicant, the ACMA is to have regard to:
(a) the endeavours that the applicant
made in attempting to comply with the notice; and
(b) the difficulties that the
applicant experienced in attempting to comply with the notice;
but the ACMA must not have regard to any financial
disadvantage that compliance with the notice may cause.
(6) If the ACMA does not, within 45 days
after:
(a) receiving the application; or
(b) if the ACMA has requested further
information—receiving that further information;
extend the period or refuse to extend the period originally
specified in the notice, the ACMA is to be taken to have extended that period
by:
(c) the period originally specified in
the notice; or
(d) one year;
whichever is the lesser period.
(7) If the ACMA refuses to approve an
application made under subsection (1), the ACMA must give written notice
of the refusal to the applicant.
61AL
Breach of prior approval notice—offence
(1) A person commits an offence if:
(a) the person has been given a notice
under section 61AJ; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a
requirement in the notice.
Penalty: 20,000 penalty units.
(2) A person who contravenes subsection (1)
commits a separate offence in respect of each day (including a day of a
conviction for the offence or any later day) during which the contravention
continues.
61AM
Breach of prior approval notice—civil penalty
(1) A person must comply with a notice under
section 61AJ.
(2) Subsection (1) is a civil penalty
provision.
(3) A person who contravenes subsection (1)
commits a separate contravention of that subsection in respect of each day
(including a day of the making of a relevant civil penalty order or any later
day) during which the contravention continues.
Subdivision BA—Prohibition of transactions that result in an unacceptable 3‑way
control situation coming into existence etc.
61AMA
Prohibition of transactions that result in an unacceptable 3‑way control
situation coming into existence—offence
A person commits an offence if:
(a) one or more transactions take
place on or after the commencement day; and
(b) the transactions have the result
that an unacceptable 3‑way control situation comes into existence in
relation to the licence area of a commercial radio broadcasting licence; and
(c) the person was:
(i) a party to the
transactions; or
(ii) in a position to
prevent the transactions taking place; and
(d) the ACMA has not approved the
transactions under section 61AMC.
Penalty: 20,000 penalty units.
61AMB
Prohibition of transactions that result in an unacceptable 3‑way control
situation coming into existence—civil penalty
(1) This section applies if:
(a) one or more transactions take
place on or after the commencement day; and
(b) the transactions have the result
that an unacceptable 3‑way control situation comes into existence in
relation to the licence area of a commercial radio broadcasting licence; and
(c) the ACMA has not approved the
transactions under section 61AMC.
(2) A person must not be:
(a) a party to the transactions; or
(b) in a position to prevent the
transactions taking place.
(3) Subsection (2) is a civil penalty
provision.
61AMC
Prior approval of transactions that result in an unacceptable 3‑way
control situation coming into existence etc.
(1) A person may, before a transaction takes
place that would place a person in breach of section 61AMA or 61AMB, make
an application to the ACMA for an approval of the transaction.
(2) An application is to be made in
accordance with a form approved in writing by the ACMA.
(3) If the ACMA considers that additional
information is required before the ACMA can make a decision on an application,
the ACMA may, by written notice given to the applicant within 30 days after
receiving the application, request the applicant to provide that information.
(4) If, after receiving an application, the
ACMA is satisfied that:
(a) if the transaction took place, it
would place a person in breach of section 61AMA or 61AMB; and
(b) either:
(i) the applicant; or
(ii) another person;
will take action, within a
period of not longer than 12 months, to ensure that an unacceptable 3‑way
control situation does not exist in relation to the licence area concerned;
the ACMA may, by written notice given to the applicant:
(c) approve the transaction; and
(d) if subparagraph (b)(i)
applies—specify a period within which action must be taken by the applicant to
ensure that an unacceptable 3‑way control situation does not exist in
relation to the licence area concerned; and
(e) if subparagraph (b)(ii)
applies—inform the applicant accordingly.
(5) The period specified in the notice must
be at least one month, but not longer than 12 months.
(6) The ACMA may specify in a notice given to
an applicant the action that the ACMA considers the applicant must take to
ensure that an unacceptable 3‑way control situation does not exist in
relation to the licence area concerned.
(7) In deciding whether to approve a
transaction, the ACMA may have regard to:
(a) any relevant undertakings that:
(i) have been accepted by
the ACMA under section 61AS; and
(ii) have not been
withdrawn or cancelled; and
(b) such other matters (if any) as the
ACMA considers relevant.
(8) If the ACMA refuses to approve a
transaction, the ACMA must give written notice of the refusal to the applicant.
(9) The ACMA must deal with applications
under subsection (1) in order of receipt.
(10) If the ACMA receives an application under subsection (1),
the ACMA must use its best endeavours to make a decision on the application
within 45 days after receipt of the application.
61AMD
Extension of time for compliance with prior approval notice
(1) A person who has been given a notice
under section 61AMC may, within 3 months before the end of the period
specified in the notice but not less than one month before the end of that
period, apply in writing to the ACMA for an extension of that period.
(2) The ACMA may grant an extension if it is
of the opinion that an extension is appropriate in all the circumstances.
(3) If the ACMA considers that additional
information is required before the ACMA can make a decision on an application,
the ACMA may, by written notice given to the applicant within 30 days after
receiving the application, request the applicant to provide that information.
(4) The ACMA must not grant more than one
extension, and the period of any extension must not exceed:
(a) the period originally specified in
the notice; or
(b) 6 months;
whichever is the lesser period.
(5) In deciding whether to grant an extension
to an applicant, the ACMA is to have regard to:
(a) the endeavours that the applicant
made in attempting to comply with the notice; and
(b) the difficulties that the
applicant experienced in attempting to comply with the notice;
but the ACMA must not have regard to any financial
disadvantage that compliance with the notice may cause.
(6) If the ACMA does not, within 45 days
after:
(a) receiving the application; or
(b) if the ACMA has requested further
information—receiving that further information;
extend the period or refuse to extend the period
originally specified in the notice, the ACMA is to be taken to have extended
that period by:
(c) the period originally specified in
the notice; or
(d) 6 months;
whichever is the lesser period.
(7) If the ACMA refuses to approve an
application made under subsection (1), the ACMA must give written notice
of the refusal to the applicant.
61AME
Breach of prior approval notice—offence
(1) A person commits an offence if:
(a) the person has been given a notice
under section 61AMC; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a
requirement in the notice.
Penalty: 20,000 penalty units.
(2) A person who contravenes subsection (1)
commits a separate offence in respect of each day (including a day of a
conviction for the offence or any later day) during which the contravention
continues.
61AMF
Breach of prior approval notice—civil penalty
(1) A person must comply with a notice under
section 61AMC.
(2) Subsection (1) is a civil penalty
provision.
(3) A person who contravenes subsection (1)
commits a separate contravention of that subsection in respect of each day
(including a day of the making of a relevant civil penalty order or any later
day) during which the contravention continues.
Subdivision C—Remedial directions
61AN
Remedial directions—unacceptable media diversity situation
(1) If, on or after the commencement day, the
ACMA is satisfied that an unacceptable media diversity situation exists in
relation to the licence area of a commercial radio broadcasting licence, the
ACMA may give a person such written directions as the ACMA considers
appropriate for the purpose of ensuring that that situation ceases to exist.
(2) The ACMA’s
directions may include:
(a) a direction requiring the disposal
of shares or interests in shares; or
(b) a direction restraining the
exercise of any rights attached to:
(i) shares; or
(ii) interests in shares;
or
(c) a direction prohibiting or
deferring the payment of any sums due to a person in respect of shares, or
interests in shares, held by the person; or
(d) a direction that any exercise of
rights attached to:
(i) shares; or
(ii) interests in shares;
be disregarded.
(3) Subsection (2) does not limit subsection (1).
(4) The ACMA must not give a direction under subsection (1)
if the direction would have the effect of requiring a registered controller of
a registered media group to cease to be in a position to exercise control of
any of the media operations in the group.
(4A) Subsection (4) does not prevent the
ACMA from giving a direction under subsection (1) to a registered
controller of a registered media group that would have the effect of requiring
the registered controller to cease to be in a position to exercise control of a
media operation in the group if:
(a) the registered controller failed
to comply with a notice under section 61AJ; and
(b) the notice related, to any extent,
to the media operation.
(4B) Subsection (4) does not prevent the
ACMA from giving a direction under subsection (1) to a registered
controller of a registered media group that would have the effect of requiring
the registered controller to cease to be in a position to exercise control of a
media operation in the group if:
(a) an approval under section 61AJ
was given on the basis that the ACMA was satisfied that a person other than the
registered controller would, within a particular period, take action that, to
any extent, relates to the media operation; and
(b) the person failed to take the
action within that period.
(4C) If:
(a) the ACMA made any of the following
decisions (the original decision) in connection with a
registrable media group in relation to the licence area of a commercial radio
broadcasting licence:
(i) a decision to enter
the media group in the Register under subsection 61AY(1) or 61AZ(1);
(ii) a decision under
subsection 61AZE(1) confirming the entry of the media group in the Register;
(iii) a decision under
section 61AZF affirming a decision under subsection 61AZE(1) to confirm
the entry of the media group in the Register;
(iv) a decision under
section 61AZF revoking a decision under subsection 61AZE(1) to cancel the
entry of the media group in the Register; and
(b) any of the following subparagraphs
applies:
(i) in the case of a
decision under subsection 61AZE(1)—a person applied to the ACMA for a
reconsideration of the original decision;
(ii) in the case of a
decision under section 61AZF—a person applied to the Administrative
Appeals Tribunal for a review of the original decision;
(iii) in any case—a person
applied to a court for an order of review, a writ of mandamus or prohibition,
or an injunction, in relation to the original decision; and
(c) the original decision was set
aside or revoked; and
(d) after the original decision was
set aside or revoked, the ACMA entered another registrable media group in
relation to that licence area in the Register; and
(e) after that other group was entered
in the Register, the Administrative Appeals Tribunal or a court made a decision
the effect of which was to restore or affirm the original decision;
subsection (4) does not prevent the ACMA from giving
a direction under subsection (1) to a registered controller of that other
group that would have the effect of requiring the registered controller to
cease to be in a position to exercise control of any media operation in that
other group.
(5) A direction under subsection (1)
must specify a period within which the person must comply with the direction.
(6) The period must not be longer than 2
years.
(6A) If:
(a) the ACMA gives a direction under subsection (1)
in the circumstances referred to in subsection (4C); and
(b) subsection (8) does not
apply;
the period specified in the direction must be 2 years.
(7) If the ACMA is satisfied that the person:
(a) acted in good faith; and
(b) took reasonable precautions, and
exercised due diligence, to avoid:
(i) the unacceptable media
diversity situation coming into existence; or
(ii) if the unacceptable
media diversity situation already existed—a reduction in the number of points
in the licence area concerned;
the period specified in the direction must be 2 years.
(8) If the ACMA is satisfied that the person
acted flagrantly in breach of section 61AG or 61AH, the period specified
in the direction must be one month.
(9) The Parliament recognises that, if a
period of one month is specified in a direction, the person to whom the
direction is given or another person may be required to dispose of shares or
interests in shares in a way, or otherwise make arrangements, that could cause
the person a considerable financial disadvantage. Such a result is seen as
necessary in order to discourage flagrant breaches of sections 61AG and
61AH.
61ANA
Remedial directions—unacceptable 3‑way control situation
(1) If, on or after the commencement day, the
ACMA is satisfied that an unacceptable 3‑way control situation exists in
relation to the licence area of a commercial radio broadcasting licence, the
ACMA may give a person such written directions as the ACMA considers
appropriate for the purpose of ensuring that that situation ceases to exist.
(2) The ACMA’s directions may include:
(a) a direction requiring the disposal
of shares or interests in shares; or
(b) a direction restraining the
exercise of any rights attached to:
(i) shares; or
(ii) interests in shares;
or
(c) a direction prohibiting or
deferring the payment of any sums due to a person in respect of shares, or
interests in shares, held by the person; or
(d) a direction that any exercise of
rights attached to:
(i) shares; or
(ii) interests in shares;
be disregarded.
(3) Subsection (2) does not limit subsection (1).
(4) A direction under subsection (1)
must specify a period within which the person must comply with the direction.
(5) The period must not be longer than 12
months.
(6) If the ACMA is satisfied that the person:
(a) acted in good faith; and
(b) took reasonable precautions, and
exercised due diligence, to avoid the unacceptable 3‑way control
situation coming into existence;
the period specified in the direction must be 12 months.
(7) If the ACMA is satisfied that the person
acted flagrantly in breach of section 61AMA or 61AMB, the period specified
in the direction must be one month.
(8) The Parliament recognises that, if a
period of one month is specified in a direction, the person to whom the
direction is given or another person may be required to dispose of shares or
interests in shares in a way, or otherwise make arrangements, that could cause
the person a considerable financial disadvantage. Such a result is seen as necessary
in order to discourage flagrant breaches of sections 61AMA and 61AMB.
61AP
Extension of time for compliance with remedial direction
(1) A person who has been given a direction
under section 61AN or 61ANA may, within 3 months before the end of the period
specified in the direction but not less than one month before the end of that
period, apply in writing to the ACMA for an extension of that period.
(2) An application for an extension cannot be
made if the period specified in the direction was one month.
(3) In the case of a direction under section 61AN,
the ACMA may grant an extension if it is of the opinion that:
(a) an unacceptable media diversity
situation is likely to cease to exist in the licence area concerned within 3
months after the end of the period specified in the direction under section 61AN;
and
(b) the applicant acted in good faith;
and
(c) an extension is appropriate in all
the circumstances.
(3A) In the case of a direction under section 61ANA,
the ACMA may grant an extension if it is of the opinion that:
(a) an unacceptable 3‑way
control situation is likely to cease to exist in the licence area concerned
within 3 months after the end of the period specified in the direction under
section 61ANA; and
(b) the applicant acted in good faith;
and
(c) an extension is appropriate in all
the circumstances.
(4) If the ACMA considers that additional
information is required before the ACMA can make a decision on an application,
the ACMA may, by written notice given to the applicant within 30 days after
receiving the application, request the applicant to provide that information.
(5) The ACMA must not grant more than one
extension, and the period of any extension must not exceed 3 months.
(6) In deciding whether to grant an extension
to a person, the ACMA is to have regard to:
(a) the endeavours that the applicant
made in attempting to comply with the direction; and
(b) the difficulties experienced by
the applicant in attempting to comply with the direction; and
(c) the seriousness of the situation
that led to the giving of the direction under section 61AN or 61ANA, as
the case may be;
but the ACMA must not have regard to any financial
disadvantage that compliance with the direction may cause.
(7) If the ACMA does not, within 45 days after:
(a) receiving the application; or
(b) if the ACMA has requested further
information—receiving that further information;
extend the period or refuse to extend the period
originally specified in the direction, the ACMA is to be taken to have extended
that period by 3 months.
(8) If the ACMA refuses to approve an
application made under subsection (1), the ACMA must give written notice
of the refusal to the applicant.
61AQ
Breach of remedial direction—offence
(1) A person commits an offence if:
(a) the person has been given a
direction under section 61AN or 61ANA; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a
requirement in the direction.
Penalty: 20,000 penalty units.
(2) A person who contravenes subsection (1)
commits a separate offence in respect of each day (including a day of a
conviction for the offence or any later day) during which the contravention
continues.
61AR
Breach of remedial direction—civil penalty
(1) A person must comply with a direction
under section 61AN or 61ANA.
(2) Subsection (1) is a civil penalty
provision.
(3) A person who contravenes subsection (1)
commits a separate contravention of that subsection in respect of each day
(including a day of the making of a relevant civil penalty order or any later
day) during which the contravention continues.
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 Internet site.
61AT
Enforcement of undertakings
(1) If:
(a) a person has given an undertaking
under section 61AS; and
(b) the undertaking has not been
withdrawn or cancelled; and
(c) the ACMA considers that the person
has breached the undertaking;
the ACMA may apply to the Federal Court for an order under
subsection (2).
(2) If the Federal Court is satisfied that
the person has breached the undertaking, the court may make any or all of the
following orders:
(a) an order directing the person to
comply with the undertaking;
(b) an order directing the person to
pay to the ACMA, on behalf of the Commonwealth, an amount up to the amount of
any financial benefit that the person has obtained directly or indirectly and
that is reasonably attributable to the breach;
(c) any order that the court considers
appropriate directing the person to compensate any other person who has
suffered loss or damage as a result of the breach;
(d) any other order that the court
considers appropriate.
Subdivision E—Register of Controlled Media Groups
61AU
Register of Controlled Media Groups
(1) The ACMA is to maintain a register, to be
known as the Register of Controlled Media Groups.
(2) The Register is to be maintained by
electronic means.
(3) The Register is to be made available for
inspection on the Internet.
(4) The Register is not a legislative
instrument.
(5) The ACMA must begin to comply with subsection (1)
as soon as practicable after the start of 1 February 2007.
61AV
How a media group is to be entered in the Register
(1) For the purposes of this Subdivision, the
ACMA is to enter a media group in the Register by entering in the Register,
under a heading for the group:
(a) the names of the media operations
in the group; and
(b) the name of the controller, or the
names of each of the controllers, of the media operations in the group.
(2) A media group is to be identified in the
Register by a unique number assigned by the ACMA.
61AW
Explanatory notes may be included in the Register
(1) The ACMA may include explanatory notes in
the Register.
(2) Explanatory notes do not form part of a
media group’s entry in the Register.
61AX
Continuity of media group
(1) For the purposes of this Subdivision, a
change in the controller, or any of the controllers, of a media group does not
affect the continuity of the group.
(2) For the purposes of this Subdivision, a
change in the composition of the media operations in a media group results in
the group ceasing to exist.
(3) However, the rule in subsection (2)
does not apply to a change in the composition of the media operations in a
media group if:
(a) one or more media operations cease
to be in the group; and
(b) at least 2 media operations remain
in the group; and
(c) there is no increase in the number
of media operations that remain in the group.
61AY
Initial registration of media groups
(1) If the ACMA is satisfied that a
particular media group was a registrable media group in relation to the licence
area of a commercial radio broadcasting licence at the start of 1 February 2007, the ACMA must enter the group in the Register.
(2) For the purposes of subsection (1),
the ACMA may rely on one or more notifications given, or purportedly given,
under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or
notifications given, or purportedly given, under Division 6, the ACMA must
make the relevant entry within 2 business days after receiving the notification
or the last of the notifications.
(4) If the ACMA makes an entry under subsection (1),
the ACMA is to include in the Register a note to the effect that the entry is
unconfirmed.
(5) An entry under subsection (1) is
taken to have been made at the start of 1 February 2007.
61AZ
Registration of newly‑formed media group
(1) If:
(a) the ACMA is satisfied that:
(i) a registrable media
group has come into existence on or after 1 February 2007; and
(ii) the media group is not
already entered in the Register; and
(b) the ACMA is satisfied that the
coming into existence of the media group does not have the result that:
(i) an unacceptable media
diversity situation comes into existence in relation to the licence area of a
commercial radio broadcasting licence; or
(ii) if an unacceptable
media diversity situation already exists in relation to the licence area of a
commercial radio broadcasting licence—there is a reduction in the number of
points in the licence area; and
(c) the ACMA is satisfied that the
coming into existence of the media group does not have the result that an
unacceptable 3‑way control situation comes into existence in relation to
the licence area of a commercial radio broadcasting licence;
the ACMA must enter the group in the Register.
(2) For the purposes of subsection (1),
the ACMA may rely on one or more notifications given, or purportedly given,
under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or
notifications given, or purportedly given, under Division 6, the ACMA must
make the relevant entry within 2 business days after receiving the notification
or the last of the notifications.
(4) If the ACMA makes an entry under subsection (1),
the ACMA is to include in the Register a note to the effect that the entry is
unconfirmed.
Register frozen while ACMA reconsideration is pending
or AAT/court proceedings are pending
(5) If:
(a) the ACMA makes a decision under
this Subdivision in connection with a registrable media group in relation to
the licence area of a commercial radio broadcasting licence; and
(b) any of the following subparagraphs
applies:
(i) in the case of a
decision under subsection 61AZE(1)—a person applies to the ACMA for a
reconsideration of the decision;
(ii) in the case of a
decision under section 61AZF—a person applies to the Administrative
Appeals Tribunal for a review of the decision;
(iii) in any case—a person
applies to a court for an order of review, a writ of mandamus or prohibition,
or an injunction, in relation to the decision;
then:
(c) despite subsection (1), the
ACMA must not enter any other registrable media group in relation to that
licence area in the Register under that subsection during the period (the pending
period) when that application has not been finalised unless the ACMA is
satisfied that, assuming that the decision were not to be set aside or revoked,
the coming into existence of the media group does not have the result that:
(i) an unacceptable media
diversity situation comes into existence in relation to the licence area of a
commercial radio broadcasting licence; or
(ii) if an unacceptable
media diversity situation already exists in relation to the licence area of a
commercial radio broadcasting licence—there is a reduction in the number of
points in the licence area; and
(d) if the ACMA is satisfied that
another registrable media group in relation to that licence area has come into
existence during the pending period—subsection (3) has effect, in relation
to the other registrable media group, as if the relevant notification, or the
last of the relevant notifications, as the case may be, had been received on
the first day after the end of the pending period.
(6) For the purposes of subsection (5),
an application for reconsideration of a decision is taken not to have been
finalised during the period of 28 days beginning on:
(a) if, because of the operation of
subsection 61AZF(9), the decision is taken to be affirmed—the day on which the
decision is taken to have been affirmed; or
(b) in any other case—the day on which
the decision on the reconsideration is notified to the person concerned.
(7) For the purposes of subsection (5),
if:
(a) a person applied to the
Administrative Appeals Tribunal for a review of a decision; and
(b) the Administrative Appeals
Tribunal makes a decision on the application;
the application is taken not to have been finalised during
the period of 28 days beginning on the day on which the decision mentioned in paragraph (b)
is made.
(8) For the purposes of subsection (5),
if:
(a) a person applied to the
Administrative Appeals Tribunal for a review of a decision; and
(b) the Administrative Appeals
Tribunal made a decision on the application; and
(c) a person appeals from the decision
to the Federal Court; and
(d) the Court makes a decision on the
appeal;
the application is taken not to have been finalised during
the period of 28 days beginning on the day on which the decision mentioned in paragraph (d)
is made.
(9) For the purposes of subsection (5),
if:
(a) a person applied to a court for an
order of review, a writ of mandamus or prohibition, or an injunction, in
relation to a decision; and
(b) the court makes a decision on the
application;
the application is taken not to have been finalised during
the period of 28 days beginning on the day on which the decision mentioned in paragraph (b)
is made.
(10) For the
purposes of subsection (5), if:
(a) a person applied to a court for an
order of review, a writ of mandamus or prohibition, or an injunction, in
relation to a decision; and
(b) the court made a decision on the
application; and
(c) the decision became the subject of
an appeal; and
(d) the court or another court makes a
decision on the appeal; and
(e) the decision mentioned in paragraph (d)
could be the subject of an appeal;
the application is taken not to have been finalised during
the period of 28 days beginning on the day on which the decision mentioned in paragraph (d)
is made.
(11) The regulations may provide that, in
specified circumstances, an application is taken, for the purposes of subsection (5),
not to have been finalised during a period ascertained in accordance with the
regulations.
(12) The regulations may extend the 28‑day
period referred to in subsection (6), (7), (8), (9) or (10).
61AZA
De‑registration of media group that has ceased to exist
(1) If the ACMA is satisfied that a registered
media group has ceased to exist on or after 1 February 2007, the ACMA must remove the group’s entry from the Register.
(2) For the purposes of subsection (1),
the ACMA may rely on one or more notifications given, or purportedly given,
under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or
notifications given, or purportedly given, under Division 6, the ACMA must
remove the relevant entry within 2 business days after receiving the
notification or the last of the notifications.
(4) If, under subsection (1), the ACMA
removes a group’s entry from the Register, the ACMA must include in the
Register a note to the effect that the removal is unconfirmed.
61AZB
Registration of change of controller of registered media group
(1) If the ACMA is satisfied that:
(a) a person who is not a registered
controller of a registered media group has become a controller of the group on
or after 1 February 2007; or
(b) a registered controller of a
registered media group has ceased to be a controller of the group on or after 1 February 2007;
the ACMA must:
(c) if paragraph (a)
applies—alter the group’s entry in the Register by adding the name of the
controller concerned; or
(d) if paragraph (b)
applies—alter the group’s entry in the Register by omitting the name of the
controller concerned.
(2) For the purposes of subsection (1),
the ACMA may rely on one or more notifications given, or purportedly given,
under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or
notifications given, or purportedly given, under Division 6, the ACMA must
make the relevant alteration within 2 business days after receiving the
notification or the last of the notifications.
(4) If the ACMA makes an alteration under subsection (1),
the ACMA must include in the Register a note to the effect that the alteration
is unconfirmed.
61AZC
Registration of change of composition of media group
(1) If the ACMA is satisfied that:
(a) one or more of the media
operations in a registered media group have ceased to be in that group on or
after 1 February 2007; and
(b) the group continues in existence;
the ACMA must alter the group’s entry in the Register by
omitting the name or names of the media operations referred to in paragraph (a).
(2) For the purposes of subsection (1),
the ACMA may rely on one or more notifications given, or purportedly given,
under Division 6 on or after 1 February 2007.
(3) If the ACMA relies on a notification or
notifications given, or purportedly given, under Division 6, the ACMA must
make the relevant alteration within 2 business days after receiving the
notification or the last of the notifications.
(4) If the ACMA makes an alteration under subsection (1),
the ACMA is to include in the Register a note to the effect that the alteration
is unconfirmed.
61AZCA
ACMA must deal with notifications in order of receipt
(1) For the purposes of sections 61AY,
61AZ, 61AZA, 61AZB and 61AZC, the ACMA must deal with notifications given, or
purportedly given, under Division 6 in order of receipt.
(2) Subsection (1) has effect subject to
subsection 61AZ(5).
61AZD
Conditional transactions
Entry of media group
(1) If:
(a) a person is a party to a proposed
transaction; and
(b) the proposed transaction is
subject to the condition that the ACMA enters a proposed media group in the
Register; and
(c) the person requests the ACMA to
assume, for the purposes of this Subdivision, that the proposed transaction:
(i) had been completed;
and
(ii) were not subject to
that condition; and
(d) the ACMA is satisfied that:
(i) the parties to the
proposed transaction are acting in good faith; and
(ii) if the media group
were to be entered in the Register on the basis of the assumption mentioned in paragraph (c)—the
proposed transaction will be completed within 5 business days after the making
of the relevant entry in the Register;
then, for the purposes of this Subdivision, the ACMA may
make the assumption mentioned in paragraph (c).
Removal of entry of media group
(2) If:
(a) a person is a party to a proposed
transaction; and
(b) the proposed transaction is
subject to the condition that the ACMA removes a media group’s entry from the
Register; and
(c) the person requests the ACMA to
assume, for the purposes of this Subdivision, that the proposed transaction:
(i) had been completed;
and
(ii) were not subject to
that condition; and
(d) the ACMA is satisfied that:
(i) the parties to the
proposed transaction are acting in good faith; and
(ii) if the media group’s
entry were to be removed from the Register on the basis of the assumption
mentioned in paragraph (c)—the proposed transaction will be completed
within 5 business days after the removal of the relevant entry from the
Register;
then, for the purposes of this Subdivision, the ACMA may
make the assumption mentioned in paragraph (c).
Alteration of entry of media group
(3) If:
(a) a person is a party to a proposed
transaction; and
(b) the proposed transaction is
subject to the condition that the ACMA alters a media group’s entry in the
Register; and
(c) the person requests the ACMA to
assume, for the purposes of this Subdivision, that the proposed transaction:
(i) had been completed;
and
(ii) were not subject to
that condition; and
(d) the ACMA is satisfied that:
(i) the parties to the
proposed transaction are acting in good faith; and
(ii) if the media group’s
entry in the Register were to be altered on the basis of the assumption
mentioned in paragraph (c)—the proposed transaction will be completed
within 5 business days after the making of the relevant alteration in the
Register;
then, for the purposes of this Subdivision, the ACMA may
make the assumption mentioned in paragraph (c).
Requests
(4) A request under subsection (1), (2)
or (3) must be:
(a) in a form approved in writing by
the ACMA; and
(b) accompanied by such information as
the ACMA requires.
(5) An approved form of a request may provide
for verification by statutory declaration of information accompanying requests.
61AZE
Review and confirmation of entries and alterations etc.
Review
(1) If the ACMA:
(a) enters a media group in the
Register under subsection 61AY(1) or 61AZ(1); or
(b) removes a media group’s entry from
the Register under subsection 61AZA(1); or
(c) makes an alteration to a media
group’s entry in the Register under subsection 61AZB(1) or 61AZC(1);
the ACMA must review the entry, removal or alteration, and
make a decision:
(d) confirming the relevant entry,
removal or alteration; or
(e) cancelling the relevant entry,
removal or alteration.
Confirmation
(2) If the ACMA confirms the relevant entry,
removal or alteration, the ACMA must remove from the Register the note stating
that the entry, removal or alteration is unconfirmed.
Cancellation
(3) If the ACMA cancels an entry, the ACMA
must:
(a) remove the entry from the
Register; and
(b) remove from the Register the note
stating that the entry is unconfirmed.
(4) If the
ACMA cancels the removal of an entry, the ACMA must:
(a) restore the entry to the Register;
and
(b) remove from the Register the note
stating that the removal is unconfirmed.
(5) If the ACMA cancels an alteration, the
ACMA must:
(a) reverse the alteration; and
(b) remove from the Register the note
stating that the alteration is unconfirmed.
ACMA not required to rely on notifications
(6) To avoid doubt, in exercising its powers
under subsection (1), the ACMA is not required to rely on a notification
given, or purportedly given, under Division 6.
Conditional transactions
(7) If:
(a) under subsection (1), the
ACMA reviews an entry or alteration; and
(b) the entry or alteration was made
on the assumption that a proposed transaction had been completed (see section 61AZD);
and
(c) the ACMA is not satisfied that the
proposed transaction was completed within 5 business days after the making of
the entry or alteration;
the ACMA must make a decision under subsection (1)
cancelling the entry or alteration.
(8) If:
(a) under subsection (1), the
ACMA reviews a removal of an entry; and
(b) the removal was done on the
assumption that a proposed transaction had been completed (see section 61AZD);
and
(c) the ACMA is not satisfied that the
proposed transaction was completed within 5 business days after the removal;
the ACMA must make a decision under subsection (1) to
cancel the removal.
ACMA may request additional information
(9) If:
(a) under subsection (1), the
ACMA reviews an entry, removal or alteration; and
(b) the ACMA considers that additional
information is required before the ACMA can make a decision under subsection (1);
the ACMA may, within 14 days after the relevant entry,
removal or alteration, by written notice given to a person, request the person
to provide that information.
Deadline
(10) If the ACMA does not, within 28 days
after:
(a) doing whichever of the following is
applicable:
(i) entering a media group
in the Register under subsection 61AY(1) or 61AZ(1);
(ii) removing a media
group’s entry from the Register under subsection 61AZA(1);
(iii) making an alteration
to a media group’s entry in the Register under subsection 61AZB(1) or 61AZC(1);
or
(b) if the ACMA has requested further
information—receiving that further information;
make a decision under subsection (1):
(c) confirming the relevant entry,
removal or alteration; or
(d) cancelling the relevant entry, removal
or alteration;
the ACMA is taken to have made a decision under subsection (1)
at the end of that 28‑day period confirming the relevant entry, removal
or alteration.
61AZF
Reconsideration of decisions
Applications for reconsideration of decisions
(1) A person:
(a) whose interests are affected by a
decision under subsection 61AZE(1); and
(b) who is dissatisfied with the
decision;
may apply to the ACMA for the ACMA to reconsider the
decision.
(2) The application must:
(a) be in a form approved in writing
by the ACMA; and
(b) set out the reasons for the
application.
(3) The application must be made within 7
days after the taking of the action required by subsection 61AZE(2), (3), (4)
or (5) to give effect to the decision.
(4) An approved form of an application may
provide for verification by statutory declaration of statements in
applications.
Reconsideration of decisions—application
(5) Upon receiving an application under subsection (1),
the ACMA must:
(a) reconsider the decision; and
(b) affirm or revoke the decision.
(6) The ACMA’s decision on reconsideration of
a decision has effect as if it had been made under subsection 61AZE(1).
(7) The ACMA must give to the applicant a
notice stating its decision on the reconsideration.
ACMA may request additional information
(8) If:
(a) an application is made under subsection (1);
and
(b) the ACMA considers that additional
information is required before the ACMA can make a decision under subsection (5);
the ACMA may, within 14 days after receiving the
application, by written notice given to:
(c) the applicant; or
(d) any other person;
request the applicant or other person to provide that
information.
(9) If the ACMA does not, within 28 days
after:
(a) receiving an application under subsection (1);
or
(b) if the ACMA has requested further
information—receiving that further information;
make a decision under subsection (5), the ACMA is
taken to have made a decision under subsection (5) at the end of that 28‑day
period affirming the original decision.
Reconsideration of decisions—ACMA’s own initiative
(10) The ACMA may, at any time:
(a) reconsider a decision made under
subsection 61AZE(1); and
(b) affirm or revoke the decision.
(11) The ACMA’s decision on reconsideration of
a decision has effect as if it had been made under subsection 61AZE(1).
61AZG
Corrections of clerical errors or obvious defects
The ACMA may alter the Register for the
purposes of correcting a clerical error or an obvious defect in the Register.
61AZH
Regulations
The regulations may make further
provision about the operation of the Register.
Division 5B—Disclosure of cross‑media relationships
61BA
Definitions
In this Division:
media operation means:
(a) a commercial television
broadcasting licence; or
(b) a commercial radio broadcasting
licence; or
(c) a newspaper that is associated
with the licence area of a commercial television broadcasting licence or a
commercial radio broadcasting licence.
prime‑time hours means the hours:
(a) beginning at 6 am each day or, if
another time is prescribed, beginning at that prescribed time each day; and
(b) ending at 10 am on the same day or, if another time is prescribed, ending at that prescribed time on the same
day.
set of media operations means:
(a) a commercial television
broadcasting licence and a commercial radio broadcasting licence that have the
same licence area; or
(b) a commercial television
broadcasting licence and a newspaper that is associated with the licence area
of the licence; or
(c) a commercial radio broadcasting
licence and a newspaper that is associated with the licence area of the
licence.
61BB
Disclosure of cross‑media relationship by commercial television
broadcasting licensee
Scope
(1) This section applies if:
(a) a person is in a position to exercise
control of each media operation in a set of media operations; and
(b) a commercial television
broadcasting licence is in the set; and
(c) the licensee broadcasts matter
that is wholly or partly about:
(i) the business affairs
of a commercial radio broadcasting licensee whose licence is in the set; or
(ii) the business affairs
of the publisher of a newspaper that is in the set.
Note: For business affairs, see
section 61BH.
Requirement to disclose cross‑media relationship
(2) If subparagraph (1)(c)(i) applies,
the commercial television broadcasting licensee must also broadcast a statement
describing (whether in summary form or otherwise) the relationship between the
commercial television broadcasting licensee and the commercial radio
broadcasting licensee.
(3) It is sufficient if the statement under subsection (2)
is to the effect that there is a cross‑media relationship between the
commercial television broadcasting licensee and the commercial radio
broadcasting licensee.
(4) If subparagraph (1)(c)(ii) applies,
the commercial television broadcasting licensee must also broadcast a statement
describing (whether in summary form or otherwise) the relationship between the
commercial television broadcasting licensee and the publisher of the newspaper.
(5) It is sufficient if the statement under subsection (4)
is to the effect that there is a cross‑media relationship between the
commercial television broadcasting licensee and the publisher of the newspaper.
How statement is to be broadcast
(6) A statement under subsection (2) or
(4) must be broadcast in a way that will adequately bring it to the attention
of a reasonable person who may have viewed the broadcast mentioned in paragraph (1)(c).
(7) The regulations may provide that subsection (6)
is taken to have been complied with if the statement is broadcast in the
manner, and at the time, specified in, or ascertained in accordance with, the
regulations.
61BC
Choice of disclosure method—commercial radio broadcasting licensee
Notice of choice may be given to the ACMA
(1) A commercial radio broadcasting licensee
may give the ACMA a written notice making a choice that section 61BE apply
to the licensee with effect from a Sunday specified in the notice.
Note: If a notice is not given, section 61BD
applies to the licensee.
When notice must be given
(2) A notice under subsection (1) must
be given at least 5 business days before the Sunday specified in the notice.
Duration of notice
(3) A notice under subsection (1):
(a) comes into force at the beginning
of the Sunday specified in the notice; and
(b) unless sooner revoked, remains in
force indefinitely.
Revocation of notice
(4) If a notice under subsection (1) is
in force in relation to a commercial radio broadcasting licensee, the licensee
may, by written notice given to the ACMA, revoke the subsection (1) notice
with effect from the end of a Saturday specified in the revocation notice.
(5) A notice under subsection (4) must
be given at least 5 business days before the Saturday specified in the notice.
Notices to be available on the Internet
(6) If a notice is in force under subsection (1),
the ACMA must make a copy of the notice available on the Internet.
61BD
Disclosure of cross‑media relationship by commercial radio broadcasting
licensee—business affairs disclosure method
Scope
(1) This section applies if:
(a) a person is in a position to
exercise control of each media operation in a set of media operations; and
(b) a commercial radio broadcasting
licence is in the set; and
(c) the licensee broadcasts matter
that is wholly or partly about:
(i) the business affairs
of a commercial television broadcasting licensee whose licence is in the set;
or
(ii) the business affairs
of the publisher of a newspaper that is in the set; and
(d) a notice under subsection 61BC(1)
is not in force in relation to the commercial radio broadcasting licensee.
Note: For business affairs, see
section 61BH.
Requirement to disclose cross‑media relationship
(2) If subparagraph (1)(c)(i) applies,
the commercial radio broadcasting licensee must also broadcast a statement
describing (whether in summary form or otherwise) the relationship between the
commercial radio broadcasting licensee and the commercial television
broadcasting licensee.
(3) It is sufficient if the statement under subsection (2)
is to the effect that there is a cross‑media relationship between the
commercial radio broadcasting licensee and the commercial television
broadcasting licensee.
(4) If subparagraph (1)(c)(ii) applies,
the commercial radio broadcasting licensee must also broadcast a statement
describing (whether in summary form or otherwise) the relationship between the
commercial radio broadcasting licensee and the publisher of the newspaper.
(5) It is sufficient if the statement under subsection (4)
is to the effect that there is a cross‑media relationship between the
commercial radio broadcasting licensee and the publisher of the newspaper.
How statement is to be broadcast
(6) A statement under subsection (2) or
(4) must be broadcast in a way that will adequately bring it to the attention
of a reasonable person who may have listened to the broadcast mentioned in paragraph (1)(c).
(7) The regulations may provide that subsection (6)
is taken to have been complied with if the statement is broadcast in the
manner, and at the time, specified in, or ascertained in accordance with, the
regulations.
61BE
Disclosure of cross‑media relationship by commercial radio broadcasting
licensee—regular disclosure method
Scope
(1) This section applies if:
(a) a person is in a position to
exercise control of each media operation in a set of media operations; and
(b) a commercial radio broadcasting
licence is in the set; and
(c) a notice under subsection 61BC(1)
is in force in relation to the commercial radio broadcasting licensee.
Requirement to disclose cross‑media relationship
(2) If a commercial television broadcasting
licence is in the set, the commercial radio broadcasting licensee must
regularly broadcast a statement describing (whether in summary form or otherwise)
the relationship between the commercial radio broadcasting licensee and the
commercial television broadcasting licensee.
(3) It is sufficient if the statement under subsection (2)
is to the effect that there is a cross‑media relationship between the commercial
radio broadcasting licensee and the commercial television broadcasting
licensee.
(4) If a newspaper is in the set, the
commercial radio broadcasting licensee must regularly broadcast a statement
describing (whether in summary form or otherwise) the relationship between the
commercial radio broadcasting licensee and the publisher of the newspaper.
(5) It is sufficient if the statement under subsection (4)
is to the effect that there is a cross‑media relationship between the
commercial radio broadcasting licensee and the publisher of the newspaper.
How statement is to be broadcast
(6) Statements under subsection (2) or
(4) are to be broadcast in a way, and with a frequency, that is reasonably
likely to ensure that the audience of the commercial radio broadcasting service
during prime‑time hours is aware that:
(a) in the case of statements under subsection (2)—there
is a relationship between the commercial radio broadcasting licensee and the
commercial television broadcasting licensee; or
(b) in the case of statements under subsection (4)—there
is a relationship between the commercial radio broadcasting licensee and the
publisher of the newspaper.
(7) A commercial radio broadcasting licensee
is taken to have complied with subsection (6) if:
(a) the statement is broadcast at
least once each day during prime‑time hours; and
(b) the statement is broadcast in a
way that will adequately bring it to the attention of a reasonable person who
may have listened to the broadcast of the statement.
(8) The regulations may provide that a
commercial radio broadcasting licensee is taken to have complied with subsection (6)
if the statement is broadcast in the manner, and at the times, ascertained in
accordance with the regulations.
61BF
Disclosure of cross‑media relationship by publisher of newspaper
Scope
(1) This section applies if:
(a) a person is in a position to
exercise control of each media operation in a set of media operations; and
(b) a newspaper is in the set; and
(c) material published in a particular
edition of the newspaper is wholly or partly about:
(i) the business affairs
of a commercial television broadcasting licensee whose licence is in the set;
or
(ii) the business affairs
of a commercial radio broadcasting licensee whose licence is in the set.
Note: For business affairs, see
section 61BH.
Requirement to disclose cross‑media relationship
(2) If subparagraph (1)(c)(i) applies,
the publisher of the newspaper must cause to be published in the same edition
of the newspaper a statement describing (whether in summary form or otherwise)
the relationship between the publisher and the commercial television
broadcasting licensee.
(3) It is sufficient if the statement under subsection (2)
is to the effect that there is a cross‑media relationship between the
publisher and the commercial television broadcasting licensee.
(4) If subparagraph (1)(c)(ii) applies,
the publisher of the newspaper must cause to be published in the same edition
of the newspaper a statement describing (whether in summary form or otherwise)
the relationship between the publisher and the commercial radio broadcasting
licensee.
(5) It is sufficient if the statement under subsection (4)
is to the effect that there is a cross‑media relationship between the
publisher and the commercial radio broadcasting licensee.
How statement is to be published
(6) A statement under subsection (2) or
(4) must be published in a way that will adequately bring it to the attention
of a reasonable person who may have read the material mentioned in paragraph (1)(c).
(7) The regulations may provide that subsection (6)
is taken to have been complied with if the statement is published in the manner
specified in, or ascertained in accordance with, the regulations.
Offence
(8) A person
is guilty of an offence if:
(a) the person is subject to a
requirement under this section; and
(b) the person omits to do an act; and
(c) the omission breaches the
requirement.
Penalty for contravention of this subsection: 2,000 penalty
units.
61BG
Exception—political communication
Sections 61BB, 61BD, 61BE and 61BF
do not apply to the extent (if any) that they would infringe any constitutional
doctrine of implied freedom of political communication.
61BH
Matter or material about the business affairs of a broadcasting licensee or
newspaper publisher
Matter or material about business affairs—what is
included and excluded
(1) A reference in this Division to matter
or material that is wholly or partly about the business
affairs of a commercial television broadcasting licensee, a commercial
radio broadcasting licensee or a newspaper publisher:
(a) includes a reference to matter or
material, where, having regard to:
(i) the nature of the
matter or material; and
(ii) the way in which the
matter or material is presented;
it would be reasonable to
conclude that the object, or one of the objects, of the broadcast of the matter
or the publication of the material, as the case may be, was to:
(iii) promote; or
(iv) otherwise influence
members of the public, or of a section of the public, to view, to listen to, or
to read;
matter broadcast, or to be
broadcast, by the licensee, or material published, or to be published, in the
newspaper, as the case may be; and
(b) does
not include a reference to:
(i) a journalistic
acknowledgment of a program or article as being the source of particular
information; or
(ii) advertising matter or
advertising material, where a reasonable person would be able to distinguish
the advertising matter or advertising material from other matter or material;
or
(iii) a program guide (see subsection (2));
or
(iv) exempt matter or exempt
material (see subsection (4)).
Program guide
(2) For the purposes of this section, a program
guide is matter or material that consists of no more than:
(a) a schedule of:
(i) the television
programs provided by 2 or more television broadcasting services; or
(ii) the radio programs
provided by 2 or more radio broadcasting services; or
(b) a combination of:
(i) a schedule covered by paragraph (a);
and
(ii) items of factual
information, and/or items of comment, about some or all of the programs in the
schedule, where each item is brief;
where the matter or material does not single out one of
those services for special promotion.
(3) For the purposes of subsection (2):
(a) a television broadcasting
service is:
(i) a commercial
broadcasting service that provides television programs; or
(ii) a national
broadcasting service that provides television programs; and
(b) a radio broadcasting service
is:
(i) a commercial broadcasting
service that provides radio programs; or
(ii) a national
broadcasting service that provides radio programs.
Exempt matter or exempt material
(4) The Minister may, by legislative
instrument, determine that:
(a) matter included in a specified class
of matter is exempt matter for the purposes of this section; and
(b) material included in a specified
class of material is exempt material for the purposes of this
section.
(5) A determination under subsection (4)
has effect accordingly.
Advertising
(6) This section does not, by implication,
affect the meaning of the expression advertising when used in any
other provision of this Act.
Division 5C—Local news and information requirements for regional
commercial radio broadcasting licensees
Subdivision A—Introduction
61CA
Definitions
In this Division:
approved local content plan means an approved
local content plan under Subdivision C.
benchmark year means:
(a) in relation to a regional
commercial radio broadcasting licence where a single trigger event has
occurred—the 52‑week period ending on the Saturday before the day on
which the trigger event occurred; and
(b) in relation to a regional
commercial radio broadcasting licence where 2 or more trigger events have
occurred—the 52‑week period ending on the Saturday before the day on
which the most recent trigger event occurred.
community service announcement means
community information, or community promotional material, for the broadcast of
which the licensee does not receive any consideration in cash or in kind.
controller has the same meaning as in
Division 5A.
designated local content program means a
program about matters of local significance, other than:
(a) a news bulletin; or
(aa) a weather bulletin; or
(b) a community service announcement;
or
(c) an emergency warning.
draft local content plan means a draft local
content plan under Subdivision C.
eligible local news bulletins means local
news bulletins that meet the following requirements:
(a) the bulletins are broadcast on at
least 5 days during the week;
(b) the bulletins broadcast on each of
those days have a total duration of at least 12.5 minutes;
(c) the bulletins are broadcast during
prime‑time hours;
(d) the bulletins adequately reflect
matters of local significance;
(e) none of the bulletins consists
wholly of material that has previously been broadcast in the licence area
concerned.
eligible local weather bulletins means local
weather bulletins that meet the following requirements:
(a) the bulletins are broadcast on at
least 5 days during the week;
(b) the bulletins are broadcast during
prime‑time hours.
emergency service agency means:
(a) a police force or service; or
(b) a fire service; or
(c) a body that runs an emergency
service specified in the regulations.
local (except in sections 61CR and 61CS)
has a meaning affected by section 61CC.
metropolitan licence area means:
(a) a licence area in which is
situated the General Post Office of the capital city of:
(i) New South Wales; or
(ii) Victoria; or
(iii) Queensland; or
(iv) Western Australia; or
(v) South Australia; or
(b) the licence area known as Western
Suburbs Sydney RA1.
news bulletin means a regularly scheduled
news bulletin.
prime‑time hours means the hours:
(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.
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;
the transfer of the licence is a trigger event
for the licence.
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.
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.
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
If a trigger event for a regional
commercial radio broadcasting licence occurs, then, after the occurrence of the
trigger event, the licensee must meet:
(a) minimum service standards for
local news; and
(aa) minimum service standards for
local weather; and
(b) minimum service standards for
local community service announcements; and
(c) minimum service standards for
emergency warnings; and
(d) if a declaration is in force under
subsection 61CE(6)—minimum service standards for designated local content
programs.
61CE Minimum service
standards for local news and information
Local news
(1) For the purposes of this Subdivision, a
commercial radio broadcasting licensee meets the minimum service
standards for local news during a particular week if, during that week,
the number of eligible local news bulletins broadcast by the licensee is at
least:
(a) the local news target number; or
(b) if the average weekly number of
eligible local news bulletins broadcast under the licence during the benchmark
year is a number greater than the local news target number—the greater number.
(2) For the purposes of subsection (1),
the local news target number is:
(a) 5; or
(b) if the Minister, by legislative
instrument, declares that a greater number is the local news target number—the
greater number.
Local weather
(2A) For the purposes of this Subdivision, a
commercial radio broadcasting licensee meets the minimum service
standards for local weather during a particular week if, during that
week, the number of eligible local weather bulletins broadcast by the licensee
is at least the local weather target number.
(2B) For the purposes of subsection (2A),
the local weather target number is:
(a) 5; or
(b) if the Minister, by legislative
instrument, declares that a greater number is the local weather target
number—the greater number.
Local community service announcements
(3) For the purposes of this Subdivision, a
commercial radio broadcasting licensee meets the minimum service
standards for local community service announcements during a particular
week if, during that week, the number of local community service announcements
broadcast by the licensee is at least the community service target number.
(4) For the purposes of subsection (3),
the community service target number is:
(a) 1; or
(b) if the Minister, by legislative
instrument, declares that a greater number is the local community service
target number—the greater number.
Emergency warnings
(5) For the purposes of this Subdivision, a
commercial radio broadcasting licensee meets the minimum service
standards for emergency warnings during a particular week if:
(a) on one or more occasions during
the week, one or more emergency service agencies asked the licensee to
broadcast emergency warnings, and the licensee broadcast those warnings as and
when asked to do so by those emergency service agencies; or
(b) there was no occasion during the
week when an emergency service agency asked the licensee to broadcast an
emergency warning.
Designated local content programs
(6) For the purposes of this Subdivision, the
Minister may, by legislative instrument, declare that a regional commercial
radio broadcasting licence meets the minimum service standards for designated
local content programs during a particular week if, during that week,
the licensee meets such requirements in relation to designated local content
programs as are specified in the declaration.
Subdivision C—Local content plans
61CF
Licensee must submit draft local content plan to the ACMA
(1) If a trigger event for a regional
commercial radio broadcasting licence occurs, the licensee must give the ACMA:
(a) a draft local content plan for the
licence; and
(b) a statement setting out such
information about the licensee’s broadcasting operations as the ACMA requires;
within 90 days after the day on which the trigger event
occurs.
(2) If the licensee does not comply with subsection (1),
the ACMA may, by legislative instrument, determine that a plan in the terms
specified in the determination is the approved local content plan for the
licence.
Replacement of approved local content plan
(3) If an approved local content plan (the original
plan) for a commercial radio broadcasting licence is in force:
(a) a draft local content plan given
under subsection (1) for the licence must be expressed to replace the
original plan; and
(b) if the draft local content plan
becomes an approved local content plan for the licence—the original plan ceases
to be in force.
(4) If:
(a) the ACMA makes a determination
under subsection (2) in relation to a commercial radio broadcasting
licence; and
(b) an approved local content plan
(the original plan) for the licence was in force immediately
before the determination takes effect;
then:
(c) the approved local content plan as
determined by the ACMA replaces the original plan; and
(d) the original plan ceases to be in
force.
61CG
Content of draft or approved local content plan
A draft or approved local content plan
for a regional commercial radio broadcasting licence must set out how the
licensee will comply with section 61CD.
61CH
Approval of draft local content plan
(1) If a commercial radio broadcasting
licensee gives the ACMA a draft local content plan under section 61CF, the
ACMA must:
(a) approve the plan; or
(b) refuse to approve the plan.
Approval of plan
(2) In deciding whether to approve a draft
local content plan, the ACMA must have regard to:
(a) whether the plan is adequate; and
(b) whether the plan is sufficiently
detailed; and
(c) any relevant information set out
in the paragraph 61CF(1)(b) statement; and
(d) such other matters (if any) as the
ACMA considers relevant.
(3) If the ACMA approves the draft local
content plan, the plan becomes an approved local content plan for the licence.
(4) If the ACMA approves the draft local
content plan, the ACMA must give the licensee a written notice setting out the
decision.
Refusal to approve plan
(5) If the ACMA refuses to approve the draft
local content plan, the ACMA may, by legislative instrument, determine that a
plan in the terms specified in the determination is the approved local content
plan for the licence.
(6) If the ACMA refuses to approve the draft
local content plan, the ACMA must give the licensee a written notice setting
out the reasons for the refusal.
Occurrence of trigger event when ACMA’s decision is
pending
(7) If:
(a) a commercial radio broadcasting
licensee gives the ACMA a draft local content plan under section 61CF as
the result of the occurrence of a trigger event for the licence; and
(b) another trigger event for the
licence occurs before the ACMA makes a decision under subsection (1) in
relation to the plan;
then:
(c) the ACMA is taken to have refused
to approve the plan; and
(d) subsections (5) and (6) do
not apply to that refusal.
61CJ
Register of approved local content plans
(1) The ACMA is to maintain a Register in
which the ACMA includes approved local content plans as in force from time to
time.
(2) The Register is to be maintained by
electronic means.
(3) The Register is to be made available for
inspection on the Internet.
61CK
Approved local content plan must be varied if minimum service standards are
imposed or increased
(1) This section applies if:
(a) an approved local content plan
(the current plan) for a regional commercial radio broadcasting
licence is in force; and
(b) the Minister makes a declaration
under:
(i) paragraph 61CE(2)(b);
or
(ia) paragraph 61CE(2B)(b);
or
(ii) paragraph 61CE(4)(b);
or
(iii) subsection 61CE(6);
and
(c) in the case of a declaration under
paragraph 61CE(2)(b)—the effect of the declaration is to raise the licensee’s
minimum service standards for local news.
(2) The licensee must give the ACMA:
(a) a draft variation of the current
plan; and
(b) a statement setting out such
information about the licensee’s broadcasting operations as the ACMA requires;
within 90 days after the day on which the declaration is
made.
(3) If the licensee does not comply with subsection (2),
the ACMA may, by legislative instrument, vary the current plan.
61CL
Approved local content plan may be varied by the licensee
If an approved local content plan (the current
plan) for a regional commercial radio broadcasting licence is in force,
the licensee may give the ACMA:
(a) a draft variation of the current
plan; and
(b) a statement setting out such
information about the licensee’s broadcasting operations as the ACMA requires.
61CM
Approval of draft variation
(1) If, under section 61CK or 61CL, a
commercial radio broadcasting licensee gives the ACMA a draft variation of an
approved local content plan (the current plan), the ACMA must:
(a) approve the variation; or
(b) refuse to approve the variation.
Approval of variation
(2) The ACMA must not approve the variation
unless the ACMA is satisfied that, if the licensee were to give the ACMA a
draft local content plan in the same terms as the current plan as proposed to
be varied, the ACMA would approve that draft.
(3) If the ACMA approves the variation, the
current plan is varied accordingly.
(4) If the ACMA approves the variation, the
ACMA must give the licensee a written notice setting out the decision.
Refusal to approve variation
(5) If the ACMA refuses to approve the
variation, the ACMA must give the licensee a written notice setting out the
reasons for the refusal.
(6) If the ACMA refuses to approve the
variation, the ACMA may, by legislative instrument, vary the current plan.
Occurrence of trigger event when ACMA’s decision is
pending
(7) If:
(a) under section 61CK or 61CL, a
commercial radio broadcasting licensee gives the ACMA a draft variation of an
approved local content plan; and
(b) a trigger event for the licence
occurs after the receipt of the variation but before the ACMA makes a decision
under subsection (1) in relation to the variation;
then:
(c) the ACMA is taken to have refused
to approve the variation; and
(d) subsections (5) and (6) do
not apply to that refusal.
61CN
ACMA may review approved local content plan
(1) If an approved local content plan for a
regional commercial radio broadcasting licence is in force, the ACMA must
review the plan at least once every 3 years.
(2) If, after such a review, the ACMA
considers that the approved local content plan should be varied, the ACMA may,
by legislative instrument, vary the plan.
61CP
Compliance with approved local content plan
If an approved local content plan for a
regional commercial radio broadcasting licence is in force, the licensee must
take all reasonable steps to ensure that the plan is complied with.
61CPA
Licensee must submit annual compliance report
(1) This section applies if an approved local
content plan for a regional commercial radio broadcasting licence was in force
during the whole or a part of a financial year.
(2) The regional commercial radio
broadcasting licensee must, within 3 months after the end of the financial
year, give the ACMA a report about the licensee’s compliance with the approved
local content plan during the whole or the part, as the case may be, of the
financial year.
(3) A report under subsection (2) must:
(a) be in a form approved in writing
by the ACMA; and
(b) set out such information as the
ACMA requires.
61CQ
Minister may direct the ACMA about the exercise of its powers
(1) The Minister may give the ACMA a written
direction about the exercise of the powers conferred on the ACMA by this
Subdivision.
(2) The ACMA must comply with a direction
under subsection (1).
Subdivision D—Other
local content requirements
61CR
Minister may direct the ACMA to conduct an investigation about other local
content requirements
(1) The Minister may give the ACMA a written
direction requiring the ACMA to conduct an investigation under section 170
into:
(a) whether the ACMA should exercise
its powers under section 43 to impose conditions requiring regional
commercial radio broadcasting licensees to broadcast programs about matters of
local significance; and
(b) if so, the content of those
conditions.
(2) The ACMA must comply with a direction
under subsection (1).
(3) This section does not limit the powers
conferred on the ACMA by section 43 or 170.
(4) This section does not limit the powers
conferred on the Minister by section 61CS.
61CS
Minister may direct the ACMA to impose licence conditions relating to local
content
(1) The Minister may give the ACMA a written
direction requiring the ACMA to exercise its powers under section 43 to
impose conditions requiring regional commercial radio broadcasting licensees to
broadcast programs about matters of local significance.
(2) The Minister may give the ACMA a written
direction requiring the ACMA to exercise its powers under section 43 to
impose one or more specified conditions requiring regional commercial radio
broadcasting licensees to broadcast programs about matters of local
significance.
(3) The Minister may give the ACMA a written
direction requiring the ACMA to exercise its powers under section 43 to
impose conditions requiring a specified regional commercial radio broadcasting
licensee to broadcast programs about matters of local significance.
(4) The Minister may give the ACMA a written
direction requiring the ACMA to exercise its powers under section 43 to
impose one or more specified conditions requiring a specified regional
commercial radio broadcasting licensee to broadcast programs about matters of
local significance.
(5) The ACMA must comply with a direction
under subsection (1), (2), (3) or (4).
(6) This section does not limit the powers
conferred on the ACMA by section 43.
61CT
Regular reviews of local content requirements
(1) At least once every 3 years, the Minister
must cause to be conducted a review of the following matters:
(a) the operation of sections 43B
and 43C;
(b) the operation of this Division;
(c) the operation of paragraph 8(2)(c)
of Schedule 2;
(d) whether sections 43B and 43C
should be amended;
(e) whether this Division should be
amended;
(f) whether paragraph 8(2)(c) of
Schedule 2 should be amended.
(2) For the purposes of facilitating the
conduct of a review under subsection (1), the ACMA must make available
information about regional commercial radio broadcasting licensees’ compliance
with:
(a) licence conditions imposed as a
result of section 43B or 43C; and
(b) licence conditions imposed as a
result of an investigation directed under section 61CR; and
(c) licence conditions imposed as a
result of a direction under section 61CS; and
(d) the licence condition set out in
paragraph 8(2)(c) of Schedule 2.
(3) The Minister may give the ACMA a written
direction requiring the ACMA to make available specified information for the
purposes of facilitating the conduct of a review under subsection (1).
(4) The ACMA must comply with a direction
under subsection (3).
(5) The Minister must cause to be prepared a
report of a review under subsection (1).
(6) The Minister must cause copies of a
report to be laid before each House of the Parliament within 15 sitting days of
that House after the completion of the report.
Division 6—Notification provisions
62
Requirement to notify control and directorships
Notification by licensee—general
(1) Each commercial television broadcasting
licensee, commercial radio broadcasting licensee and datacasting transmitter
licensee must, within 3 months after the end of each financial year, give to
the ACMA in writing:
(a) details of the persons who, to the
knowledge of the licensee, were in a position to exercise control of the
licence at the end of that financial year; and
(b) the name of each person who was a
director of the licensee at the end of that financial year.
(2) The details are to be provided in a form
approved in writing by the ACMA.
Notification by restricted datacasting licensee
(2A) Each restricted datacasting licensee must,
within 3 months after the end of each financial year that ends during the
digital radio moratorium period for the licence area of a commercial radio
broadcasting licence, give to the ACMA in writing:
(a) details of the persons who, to the
knowledge of the restricted datacasting licensee, were in a position to
exercise control of the restricted datacasting licence at the end of that
financial year; and
(b) the name of each person who was a
director of the restricted datacasting licensee at the end of that financial
year.
(2B) The details are to be provided in a form
approved in writing by the ACMA.
Notification by publisher of newspaper
(3) Each publisher of a newspaper that is
associated with the licence area of a commercial television broadcasting
licence or a commercial radio broadcasting licence must, within 3 months after
the end of each financial year, give to the ACMA in writing:
(a) details of the persons who, to the
knowledge of the publisher, were in a position to exercise control of the
newspaper at the end of that financial year; and
(b) if the publisher is a company—the
name of each person who was a director of the company at the end of that
financial year.
(4) The details are to be provided in a form
approved in writing by the ACMA.
Offence
(5) A person commits an offence if:
(a) the person is subject to a
requirement under subsection (1), (2A) or (3); and
(b) the person omits to do an act; and
(c) the omission breaches the
requirement.
Penalty for contravention of this subsection:
(a) if the breach relates to a
commercial television broadcasting licence, a datacasting transmitter licence
or a newspaper—500 penalty units; or
(b) otherwise—50 penalty units.
63
Requirement to notify changes in control
Notification by licensee—general
(1) If a commercial television broadcasting
licensee, commercial radio broadcasting licensee or datacasting transmitter
licensee becomes aware that:
(a) a person who was not in a position
to exercise control of the licence has become in a position to exercise control
of the licence; or
(b) a person who was in a position to
control the licence has ceased to be in that position;
the licensee must, within 5 days after becoming so aware,
notify the ACMA in writing of that event.
(2) The
details are to be provided in a form approved in writing by the ACMA.
Notification by restricted datacasting licensee
(2A) If, during the digital radio moratorium
period for the licence area of a commercial radio broadcasting licence, a
restricted datacasting licensee becomes aware that:
(a) a person who was not in a position
to exercise control of the restricted datacasting licence has become in a
position to exercise control of the restricted datacasting licence; or
(b) a person who was in a position to
control the restricted datacasting licence has ceased to be in that position;
the restricted datacasting licensee must, within 5 days
after becoming so aware, notify the ACMA in writing of that event.
(2B) The details
are to be provided in a form approved in writing by the ACMA.
Notification by publisher of newspaper
(3) If the publisher of a newspaper that is
associated with the licence area of a commercial television broadcasting
licence or a commercial radio broadcasting licence becomes aware that:
(a) a person who was not in a position
to exercise control of the newspaper has become in a position to exercise
control of the newspaper; or
(b) a person who was in a position to
control the newspaper has ceased to be in that position;
the publisher of the newspaper must, within 5 days after
becoming so aware, notify the ACMA in writing of that event.
(4) The
details are to be provided in a form approved in writing by the ACMA.
Offence
(5) A person
commits an offence if:
(a) the person is subject to a
requirement under subsection (1), (2A) or (3); and
(b) the person omits to do an act; and
(c) the omission breaches the
requirement.
Penalty for contravention of
this subsection:
(a) if
the breach relates to a commercial television broadcasting licence, a
datacasting transmitter licence or a newspaper—500 penalty units; or
(b) otherwise—50 penalty units.
64
Person who obtains control of a licence or newspaper must notify the ACMA
Notification by controller of licence—general
(1) If a person who was not in a position to
exercise control of a commercial television broadcasting licence, a commercial
radio broadcasting licence or a datacasting transmitter licence becomes aware
that that person is in a position to exercise control of the licence, the
person must, within 5 days after becoming so aware, notify the ACMA in writing
of that position.
(2) The details are to be provided in a form
approved in writing by the ACMA.
Notification by controller of restricted datacasting
licence
(2A) If, during the digital radio moratorium
period for the licence area of a commercial radio broadcasting licence, a
person who was not in a position to exercise control of a restricted
datacasting licence becomes aware that that person is in a position to exercise
control of the restricted datacasting licence, the person must, within 5 days
after becoming so aware, notify the ACMA in writing of that position.
(2B) The details are to be provided in a form
approved in writing by the ACMA.
Notification by controller of newspaper
(3) If a person who was not in a position to
exercise control of a newspaper that is associated with the licence area of a
commercial television broadcasting licence or a commercial radio broadcasting
licence becomes aware that the person is in a position to exercise control of
the newspaper, the person must, within 5 days after becoming so aware, notify
the ACMA in writing of that position.
(4) The details are to be provided in a form
approved in writing by the ACMA.
Offence
(5) A person commits an offence if:
(a) the person is subject to a
requirement under subsection (1), (2A) or (3); and
(b) the person omits to do an act; and
(c) the omission breaches the
requirement.
Penalty for contravention of this subsection:
(a) if the breach relates to a
commercial television broadcasting licence, a datacasting transmitter licence
or a newspaper—500 penalty units; or
(b) otherwise—50 penalty units.
65
Requirement to notify control and directorships as at 1 February 2007
Notification by licensee
(1) Each commercial television broadcasting
licensee and commercial radio broadcasting licensee must, within 5 days after 1 February 2007, give to the ACMA in writing:
(a) details of the persons who, to the
knowledge of the licensee, were in a position to exercise control of the
licence at the start of 1 February 2007; and
(b) the name of each person who was a
director of the licensee at the start of 1 February 2007.
(2) The details are to be provided in a form
approved in writing by the ACMA.
Notification by publisher of newspaper
(3) If, at the start of 1 February 2007, a newspaper is associated with the licence area of a commercial television
broadcasting licence or a commercial radio broadcasting licence, the publisher
of the newspaper must, within 5 days after 1 February 2007, give to the ACMA in writing:
(a) details of the persons who, to the
knowledge of the publisher, were in a position to exercise control of the
newspaper at the start of 1 February 2007; and
(b) if the publisher is a company—the
name of each person who was a director of the company at the start of 1 February 2007.
(4) The details are to be provided in a form
approved in writing by the ACMA.
Notification by controller
(5) If, at the start of 1 February 2007, a person is in a position to exercise control of:
(a) a commercial television
broadcasting licence; or
(b) a commercial radio broadcasting
licence; or
(c) a newspaper that is associated
with the licence area of a commercial television broadcasting licence or a
commercial radio broadcasting licence;
the person must, within 5 days after 1 February 2007, notify the ACMA in writing of that position.
(6) The details are to be provided in a form
approved in writing by the ACMA.
Offence
(7) A person
commits an offence if:
(a) the person is subject to a
requirement under subsection (1), (3) or (5); and
(b) the person omits to do an act; and
(c) the omission breaches the
requirement.
Penalty for contravention of this subsection:
(a) if
the breach relates to a commercial television broadcasting licence or a
newspaper—500 penalty units; or
(b) otherwise—50 penalty units.
65A
Strict liability offences
An offence against section 62, 63,
64 or 65 is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
65B
Designated infringement notice provisions
Sections 62, 63, 64 and 65 are
designated infringement notice provisions.
Division 7—Approval of temporary breaches
66
Offence for breaches without approval
(1) If:
(a) a transaction takes place that
places a person in breach of a provision of Division 2 or 3; and
(b) the person knew, or ought
reasonably to have known, that a result of the transaction would be to place
the person in breach of a provision of Division 2 or 3; and
(c) the person was a party to the
transaction or was in a position to prevent the transaction taking place; and
(d) the ACMA has not approved the
breach under section 67;
the person is guilty of an offence.
Penalty:
(e) if the breach relates to a
commercial television broadcasting licence or datacasting transmitter
licence—20,000 penalty units; or
(f) if the breach relates to a
commercial radio broadcasting licence—2,000 penalty units.
(1A) In a prosecution for an offence against subsection (1),
it is not necessary to prove that the defendant knew that the provision
breached was a provision of Division 2 or 3.
(2) A person who breaches subsection (1)
is guilty of a separate offence in respect of each day (including a day of a
conviction under this subsection or any subsequent day) during which the breach
of Division 2 or 3 continues.
(3) A prosecution for an offence under this
section against a person in relation to a transaction cannot be commenced if
the ACMA has given the person a notice under section 70 in relation to the
transaction and the time for compliance with the notice has not expired.
67
Applications for prior approval of temporary breaches
(1) A person may, before a transaction takes
place or an agreement is entered into that would place a person in breach of a
provision of Division 2 or 3, make an application to the ACMA for an
approval of the breach.
(2) An application is to be made in
accordance with a form approved in writing by the ACMA.
(3) If the ACMA considers that additional
information is required before the ACMA can make a decision on an application,
the ACMA may, by notice in writing given to the applicant within 30 days after
receiving the application, request the applicant to provide that information.
(4) If, after receiving an application, the ACMA
is satisfied that:
(a) if the transaction took place or
the agreement was entered into, it would place a person in breach of a
provision of Division 2 or 3; and
(b) the person will take action to
ensure that the breach of that provision ceases; and
(c) the breach is incidental to the
objectives of the transaction or agreement;
the ACMA may, by notice in writing given to the applicant,
approve the breach arising as a result of the transaction or agreement and
specify a period during which action must be taken to ensure that the breach
ceases, being a period that commences on the day on which the transaction takes
place or the agreement is entered into.
(5) The period specified in the notice must
be 6 months, one year or 2 years.
(6) The ACMA may specify in a notice the
action that the ACMA considers the person is to take so that the person is no
longer in breach of the relevant provision.
(7) If the ACMA does not, within 45 days
after:
(a) receiving the application; or
(b) if the ACMA has requested further
information—receiving that further information;
approve or refuse to approve the breach arising as a
result of the transaction or agreement, the ACMA is to be taken to have
approved the breach and allowed a period of 2 years before which the breach
must cease.
68
Extension of time for compliance with notice
(1) A person who has been given a notice
under section 67 may, within 3 months before the end of the period
specified in the notice, apply in writing to the ACMA for an extension of that
period.
(2) The ACMA is not required to grant an
extension, but may do so if, in its opinion, an extension is appropriate in all
the circumstances.
(3) If the ACMA considers that additional
information is required before the ACMA can make a decision on an application,
the ACMA may, by notice in writing given to the applicant within 30 days after
receiving the application, request the applicant to provide that information.
(4) The ACMA must not grant more than one
extension, and the period of any extension must not exceed:
(a) the period originally specified in
the notice; or
(b) one year;
whichever is the lesser.
(5) In deciding whether to grant an extension
to an applicant, the ACMA is to have regard to:
(a) the endeavours that the applicant
made in attempting to comply with the notice; and
(b) the difficulties that the
applicant experienced in attempting to comply with the notice;
but the ACMA must not have regard to any financial
disadvantage that compliance with the notice may cause.
(6) If the ACMA does not, within 45 days
after:
(a) receiving the application; or
(b) if the ACMA has requested further
information—receiving that further information;
extend the period or refuse to extend the period
originally specified in the notice, the ACMA is to be taken to have extended
that period by:
(c) the period originally specified in
the notice; or
(d) one year;
whichever is the lesser.
69
Breach of notice under section 67 to constitute an offence
A person who fails to comply with a
notice under section 67 is guilty of an offence.
Penalty:
(a) if the breach relates to a
commercial television broadcasting licence or datacasting transmitter
licence—20,000 penalty units; or
(b) if the breach relates to a
commercial radio broadcasting licence—2,000 penalty units.
Division 8—Action by the ACMA
70
Notices by the ACMA
(1) If the ACMA is satisfied that a person is
in breach of a provision of Division 2 or 3, the ACMA may, by notice in
writing given to:
(a) the person; or
(b) if the person is not the licensee
and the breach is one that can be remedied by the licensee—the licensee;
direct the person or the licensee to take action so that
the person is no longer in breach of that provision.
(2) The ACMA is not to give a notice to a
person under subsection (1) in relation to a breach if an approval under
section 67 has been given in respect of the breach and the period
specified under that section, or an extension of that period, has not expired.
(3) The notice is to specify a period during
which the person must take action to ensure that the person is no longer in
that position.
(4) The period must be one month, 6 months,
one year or 2 years.
(5) If the ACMA is satisfied that the breach
was deliberate and flagrant, the period specified in the notice must be one
month.
(6) If the ACMA gives a notice under subsection (1)
in respect of a breach that the ACMA had approved under section 67, the ACMA
must specify a period of one month in the notice under subsection (1).
(7) If the ACMA is satisfied that the person
breached the relevant provision as a result of the actions of other persons
none of whom is an associate of the person, a period of one year or 2 years
must be specified, but such a period must not be specified in other
circumstances.
(8) The Parliament recognises that, if a
period of one month is specified in a notice, the person to whom the notice is
given or another person may be required to dispose of shares in a way, or
otherwise make arrangements, that could cause the person a considerable
financial disadvantage. Such a result is seen as necessary in order to
discourage deliberate and flagrant breaches of this Part.
71
Extension of time for compliance with notice
(1) A person who has been given a notice
under section 70 may, within 3 months before the end of the period
specified in the notice, apply in writing to the ACMA for an extension of that
period.
(2) An application for an extension cannot be
made if the period specified in the notice was one month.
(3) The ACMA is not required to grant an
extension, but may do so if, in its opinion, an extension is appropriate in all
the circumstances.
(4) If the ACMA considers that additional
information is required before the ACMA can make a decision on an application,
the ACMA may, by notice in writing given to the applicant within 30 days after
receiving the application, request the applicant to provide that information.
(5) The ACMA must not grant more than one
extension, and the period of any extension must not exceed:
(a) the period originally specified in
the notice; or
(b) one year;
whichever is the lesser.
(6) In deciding whether to grant an extension
to a person, the ACMA is to have regard to:
(a) the endeavours that the applicant
made in attempting to comply with the notice; and
(b) the difficulties experienced by
the applicant in attempting to comply with the notice; and
(c) the seriousness of the breach that
led to the giving of the notice;
but the ACMA must not have regard to any financial
disadvantage that compliance with the notice may cause.
(7) If the ACMA does not, within 45 days
after:
(a) receiving the application; or
(b) if the ACMA has requested further
information—receiving that further information;
extend the period or refuse to extend the period
originally specified in the notice, the ACMA is to be taken to have extended
that period by:
(c) the period originally specified in
the notice; or
(d) one year;
whichever is the lesser.
72
Breach of notice under section 70 to constitute an offence
A person who fails to comply with a
notice under section 70 is guilty of an offence.
Penalty:
(a) if the breach relates to a
commercial television broadcasting licence or datacasting transmitter
licence—20,000 penalty units; or
(b) if the breach relates to a
commercial radio broadcasting licence—2,000 penalty units.
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.
Division 10—Prior opinions by the ACMA
74
Requests to ACMA to give an opinion on whether a person is in a position to
control a licence, a newspaper or a company
(1) A person may apply to the ACMA for an
opinion as to whether:
(a) the person is in a position to
exercise control of a commercial television broadcasting licence, a commercial
radio broadcasting licence, a satellite subscription television broadcasting
licence, a datacasting transmitter licence, a newspaper or a company; or
(b) the person would, if a transaction
took place or a contract, agreement or arrangement were entered into, being one
details of which are given in the application, be in a position to exercise
control of a commercial television broadcasting licence, a commercial radio
broadcasting licence, a satellite subscription television broadcasting licence,
a datacasting transmitter licence, a newspaper or a company.
(2) An application must be in accordance with
a form approved in writing by the ACMA, and must state the applicant’s opinion
as to whether the applicant is, or would be, in a position to exercise control
of the commercial television broadcasting licence, the commercial radio
broadcasting licence, the satellite subscription television broadcasting
licence, the datacasting transmitter licence, the newspaper or the company.
(3) If the ACMA considers that additional
information is required before an opinion can be given, the ACMA may, by notice
in writing given to the applicant within 30 days after receiving the
application, request the applicant to provide that information.
(4) The ACMA must, as soon as practicable
after:
(a) receiving the application; or
(b) if
the ACMA has requested further information—receiving that further information;
give the applicant, in writing, its opinion as to whether
the applicant is in a position to exercise control of the relevant licence,
newspaper or company.
(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.
Division 11—Miscellaneous
75
Register of matters under this Part
(1) The ACMA is to maintain a Register of:
(aa) licences granted under section 38A
or 38B; and
(a) notifications under Division 6;
and
(b) approvals given by the ACMA under
section 67; and
(c) extensions granted by the ACMA
under section 68; and
(d) notices given by the ACMA under
section 70; and
(e) extensions granted by the ACMA
under section 71.
(2) The ACMA is not to include in the
Register an approval under section 67 until the relevant transaction or
agreement has taken place or been entered into.
(3) The Register is to be open for public
inspection, and a person is entitled to be given a copy of, or an extract from,
any entry in the Register.
(4) The ACMA may charge fees for inspections
of the Register or for the provision of copies of or extracts from the
Register.
(5) The ACMA may supply copies of or extracts
from the Register certified by a member, and a copy or extract so certified is
admissible in evidence in all courts and proceedings without further proof or
production of the original.
76
Continuing offences
In order to avoid any doubt, it is
declared that section 4K of the Crimes Act 1914 applies to
obligations under this Part to comply with a notice and other obligations under
this Part to do things within a particular period.
77
Part has effect notwithstanding Trade Practices Act
The provisions of this Part have effect
notwithstanding the Trade Practices Act 1974.
78
Part not to invalidate appointments
Nothing in this Part invalidates an
appointment of a person as a director of a company.
Part 6—Community broadcasting licences
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.
81
When licences must not be allocated
(1) A licence
is not to be allocated to an applicant if:
(a) in the case of an applicant for a
CTV licence—the applicant is not a company limited by guarantee within the
meaning of the Corporations Act 2001; or
(b) the ACMA decides that subsection
83(2) applies to the applicant.
(2) Paragraph (1)(b) does not require
the ACMA to consider the application of subsection 83(2) in relation to an
applicant before allocating a licence to the applicant.
82
Other community broadcasting licences
(1) The ACMA may allocate to a person, on
application in writing by the person, a community broadcasting licence that is
not a broadcasting services bands licence.
(1A) Licences under subsection (1) are to
be allocated on the basis of one licence per service.
(2) Applications must:
(a) be in accordance with a form
approved in writing by the ACMA; and
(b) be accompanied by the application
fee determined in writing by the ACMA.
83
When persons are regarded as suitable
(1) For the purposes of this Part, a company
is a suitable community broadcasting licensee or a suitable applicant for a
community broadcasting licence if the ACMA has not decided that subsection (2)
applies to the company.
(2) The ACMA may, if it is satisfied that
allowing a particular company to provide or continue to provide broadcasting
services under a community broadcasting licence would lead to a significant
risk of:
(a) an offence against this Act or the
regulations being committed; or
(aa) a breach of a civil penalty
provision occurring; or
(b) a breach of the conditions of the
licence occurring;
decide that this subsection applies to the company.
(3) In deciding whether such a risk exists,
the ACMA is to take into account:
(a) the business record of the
company; and
(b) the company’s record in situations
requiring trust and candour; and
(c) the business record of the chief
executive and each director and secretary of the applicant; and
(d) the record in situations requiring
trust and candour of each such person; and
(e) whether the company, or a person
referred to in paragraph (c) or (d), has been convicted of an offence
against this Act or the regulations; and
(f) whether a civil penalty order has
been made against:
(i) the company; or
(ii) a person referred to
in paragraph (c) or (d).
(4) This section does not affect the
operation of Part VIIC of the Crimes Act 1914 (which includes
provisions that, in certain circumstances, relieve persons from the requirement
to disclose spent convictions and require persons aware of such convictions to
disregard them).
84
Allocation of community broadcasting licences
(1) The Minister may give directions to the ACMA
to give priority to a particular community interest or interests, whether
generally or in a particular licence area, in allocating community licences
that are broadcasting services bands licences.
(2) In deciding whether to allocate a
community broadcasting licence that is a broadcasting services bands licence to
an applicant or to one of a group of applicants, the ACMA is to have regard to:
(a) the extent to which the proposed
service or services would meet the existing and perceived future needs of the community
within the licence area of the proposed licence; and
(b) the nature and diversity of the
interests of that community; and
(c) the nature and diversity of other
broadcasting services (including national broadcasting services) available
within that licence area; and
(d) the capacity of the applicant to
provide the proposed service or services; and
(e) the undesirability of one person
being in a position to exercise control of more than one community broadcasting
licence that is a broadcasting services bands licence in the same licence area;
and
(f) the undesirability of the
Commonwealth, a State or a Territory or a political party being in a position
to exercise control of a community broadcasting licence.
84A
Designated community radio broadcasting licences to provide analog or digital
services
Licences in force immediately before the commencement
of this section
(1) If a designated community radio
broadcasting licence was in force immediately before the commencement of this
section, the licence is taken, for the purposes of this Act, to have been
allocated as a licence to provide an analog community radio broadcasting
service.
Licences allocated before the digital radio start‑up
day for the licence area
(2) If the ACMA allocates a designated community
radio broadcasting licence after the commencement of this section but before
the digital radio start‑up day for the licence area, the licence must be
allocated as a licence to provide an analog community radio broadcasting
service.
Licences allocated on or after digital radio start‑up
day for the licence area
(3) If the ACMA allocates a designated
community radio broadcasting licence on or after the digital radio start‑up
day for the licence area, the licence must be allocated as:
(a) a licence to provide an analog
community radio broadcasting service; or
(b) a licence to provide digital
community radio broadcasting services.
Licence conditions
(4) Subject to subsection (5), if a
designated community radio broadcasting licence is or was allocated as a
licence to provide an analog community radio broadcasting service, the licence
is subject to the condition that the licensee may only provide an analog
community radio broadcasting service under the licence.
(5) If:
(a) a designated community radio
broadcasting licence was in force immediately before the digital radio start‑up
day for the licence area; and
(b) the licence authorised the
licensee to provide an analog community radio broadcasting service in the
licence area;
subsection (4) ceases to apply in relation to the
licence at the start of the digital radio start‑up day for the licence
area.
(6) If a designated community radio
broadcasting licence is allocated as a licence to provide digital community
radio broadcasting services, the licence is subject to the condition that the
licensee may only provide digital community radio broadcasting services under
the licence.
85 ACMA
not required to allocate community broadcasting licence to any applicant
The ACMA is not required to allocate a
community broadcasting licence to any applicant.
85A
Services authorised by designated community radio broadcasting licences
Licences in force immediately before the commencement
of this section
(1) If:
(a) a designated community radio
broadcasting licence was in force immediately before the commencement of this
section; and
(b) the licence authorised the
licensee to provide an analog community radio broadcasting service in the
licence area;
then, during the period:
(c) beginning at the start of the day
on which this section commences; and
(d) ending immediately before the
digital radio start‑up day for the licence area;
the licence is taken to authorise the licensee to provide
that service in the licence area.
Licences allocated on or after the commencement of this
section
(2) If:
(a) a designated community radio
broadcasting licence is allocated on or after the commencement of this section
but before the digital radio start‑up day for the licence area; and
(b) the licence is allocated as a
licence to provide an analog community radio broadcasting service in the
licence area;
then, during the period:
(c) beginning at the start of the day
on which the licence is allocated; and
(d) ending immediately before the
digital radio start‑up day for the licence area;
the licence is taken to authorise the licensee to provide
that service in the licence area.
Licences in force immediately before the digital radio
start‑up day for the licence area
(3) If:
(a) a designated community radio
broadcasting licence was in force immediately before the digital radio start‑up
day for the licence area; and
(b) the licence authorised the
licensee to provide an analog community radio broadcasting service in the
licence area;
then, after the digital radio start‑up day for the licence
area, the licence is taken to authorise the licensee to provide the following
services in the licence area:
(c) the analog community radio
broadcasting service;
(d) one or more digital community
radio broadcasting services.
Licences allocated on or after digital radio start‑up
day for the licence area
(4) If:
(a) a designated community radio
broadcasting licence is allocated on or after the digital radio start‑up
day for the licence area; and
(b) the licence is allocated as a
licence to provide an analog community radio broadcasting service in the
licence area;
the licence is taken to authorise the licensee to provide
that service in the licence area.
(5) If:
(a) a designated community radio
broadcasting licence is allocated on or after the digital radio start‑up
day for the licence area; and
(b) the licence is allocated as a
licence to provide digital community radio broadcasting services in the licence
area;
the licence is taken to authorise the licensee to provide
one or more digital community radio broadcasting services in the licence area.
86
Conditions of community broadcasting licences
(1) Each community broadcasting licence is
subject to:
(a) the conditions set out in Part 5
of Schedule 2; and
(b) such other conditions as are
imposed under section 87.
(2) In addition, CTV licences are subject to
such other conditions as are imposed by or under section 87A.
87 ACMA
may impose additional conditions on community broadcasting licences
(1) The ACMA may, by notice in writing given
to a community broadcasting licensee, vary or revoke a condition of the licence
or impose an additional condition on the licence.
(2) If the ACMA proposes to vary or revoke a
condition or to impose a new condition, the ACMA must give to the licensee:
(a) written notice of its intention;
and
(b) a reasonable opportunity to make
representations to the ACMA in relation to the proposed action; and
(c) publish the proposed changes in
the Gazette.
(3) This
section does not allow the ACMA to vary or revoke a condition set out in Part 5
of Schedule 2.
(4) If the ACMA varies or revokes a condition
or imposes a new condition, the ACMA must publish the variation, the fact of
the revocation or the new condition, as the case may be, in the Gazette.
(5) Action taken under subsection (1)
must not be inconsistent with:
(a) determinations and clarifications
under section 19; or
(b) conditions set out in Part 5
of Schedule 2; or
(c) if the licence is a CTV
licence—any conditions imposed on the licence by or under section 87A.
87A
Additional conditions on CTV licences
Policy underlying additional conditions
(1) It is the intention of the Parliament
that services provided under CTV licences be regulated in a manner that causes
them not to operate in the same way as commercial television broadcasting
services.
Conditions relating to sale of access to air‑time
(2) Each CTV licence is subject to the
condition that the licensee must not sell access to more than 2 hours of air‑time
in any day to a particular person who operates a business for profit or as part
of a profit‑making enterprise, unless the person is a company that has a
sole or dominant purpose of assisting a person in education or learning.
(3) Each CTV licence is subject to the
condition that the licensee must not sell access to a combined total of more
than 8 hours of air‑time in any day to people who operate businesses for
profit or as part of profit‑making enterprises.
(4) Each CTV licence is subject to the
condition that the licensee must not sell access to more than 8 hours of air‑time
in any day to a particular person.
(5) For the purposes of the conditions
imposed by subsections (2), (3) and (4), the sale of access to air‑time
to any of the following is taken to be the sale of access to air‑time to
a company:
(a) the sale of access to air‑time
to any person in a position to exercise control of the company;
(b) the sale of access to air‑time
to any related body corporate (within the meaning of the Corporations Act
2001) of the company.
(6) The ACMA may, by written determination,
impose other conditions on all CTV licences relating to sale of access to air‑time.
Conditions relating to other matters
(7) The ACMA may, by written determination,
impose other conditions on all CTV licences, including, but not limited to,
conditions relating to:
(a) community access to air‑time;
or
(b) the governance of CTV licensees
(including conditions relating to provisions that the constitution of the
licensee must at all times contain); or
(c) the provision of annual reports to
the ACMA and the form in which they are to be provided.
Changes to conditions
(8) The ACMA may, by written determination,
vary or revoke any condition imposed by or under this section.
(9) The ACMA must, before imposing, varying
or revoking a condition under this section, seek public comment on the proposed
condition or the proposed variation or revocation.
(10) Action taken under this section must not
be inconsistent with:
(a) determinations and clarifications
under section 19; or
(b) conditions set out in Part 5
of Schedule 2.
Determinations are disallowable instruments
(11) A determination under this section is a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
Definitions
(12) In this
section:
access, in relation to air‑time, means
the right to select or provide programs to be broadcast during the air‑time.
air‑time means time available for
broadcasting programs on a community broadcasting service.
sell, in relation to access to air‑time,
means enter into any arrangement under which a person receives any
consideration in cash or in kind in relation to provision of the access to air‑time.
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 Part 10, community
broadcasting licences remain in force for 5 years.
90
Applications for renewal of community broadcasting licences
(1) The ACMA may renew a community
broadcasting licence if the licensee makes an application for renewal of the
licence, in accordance with a form approved in writing by the ACMA.
(1A) 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.
(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 period of 5 years.
(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
(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.
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.
Part 6A—Temporary community broadcasting licences
92A
Interpretation
In this Part:
company includes an incorporated association.
licence period means the period of a
temporary community broadcasting licence determined by the ACMA under paragraph
92G(1)(c) or varied by the ACMA under section 92J.
timing conditions means the conditions of a
temporary community broadcasting licence that:
(a) are about the times in which the
licence allows community broadcasting services to be provided; and
(b) are determined by the ACMA under
paragraph 92G(1)(b) or varied by the ACMA under section 92J.
92B
Temporary community broadcasting licences
(1) The ACMA may allocate to a person, on
application in writing by the person, a temporary community broadcasting licence.
(2) Applications must be in accordance with a
form approved in writing by the ACMA.
92C
Applicants for temporary community broadcasting licences
(1) The ACMA is not to allocate a temporary
community broadcasting licence to an applicant unless the applicant:
(a) is a company that is formed in Australia
or in an external Territory; and
(b) represents a community interest.
(2) The ACMA
is not to allocate a licence to an applicant if the ACMA decides that
subsection 92D(2) applies to the applicant in relation to the licence. However,
the ACMA is not required to consider the application of subsection 92D(2) to
the applicant before allocating the licence.
(3) The ACMA may refuse to allocate a licence
to an applicant if the applicant was a temporary community broadcasting
licensee for a period but did not provide community broadcasting services in
that period. This subsection does not limit the ACMA’s discretion to refuse to
allocate a licence.
92D
When applicants and licensees are regarded as suitable
(1) A company is a suitable applicant or
suitable licensee in relation to a temporary community broadcasting
licence if the ACMA has not decided that subsection (2) applies to the
company in relation to the licence.
Note: It is a condition of a temporary community
broadcasting licence that the licensee remain a suitable licensee: see
paragraph 9(2)(a) of Schedule 2.
(2) The ACMA may, if it is satisfied that
allowing a company to provide or continue to provide broadcasting services
under a temporary community broadcasting licence would lead to a significant
risk of:
(a) an offence against this Act or the
regulations being committed; or
(aa) a breach of a civil penalty
provision occurring; or
(b) a breach of the conditions of the
licence occurring;
decide that this subsection applies to the company in
relation to the licence.
(3) In deciding whether such a risk exists,
the ACMA is to take into account only:
(a) the business record of the
company; and
(b) the company’s record in situations
requiring trust and candour; and
(c) the business record of the chief
executive and each director and secretary of the applicant; and
(d) the record in situations requiring
trust and candour of each such person; and
(e) whether the company, or a person
referred to in paragraph (c) or (d), has been convicted of an offence
against this Act or the regulations; and
(f) whether a civil penalty order has
been made against:
(i) the company; or
(ii) a person referred to
in paragraph (c) or (d).
(4) This section does not affect the
operation of Part VIIC of the Crimes Act 1914 (which includes
provisions that, in certain circumstances, relieve persons from the requirement
to disclose spent convictions and require persons aware of such convictions to
disregard them).
92E
Criteria for deciding whether to allocate a licence
(1) In deciding whether to allocate a
temporary community broadcasting licence to an applicant or to one of a group
of applicants, the ACMA may have regard to:
(a) the undesirability of one person
being in a position to exercise control of more than one community broadcasting
licence that is a broadcasting services bands licence in the same licence area;
and
(b) the undesirability of the
Commonwealth, a State or a Territory or a political party being in a position
to exercise control of a temporary community broadcasting licence.
(2) In deciding whether to allocate a
temporary community broadcasting licence to an applicant or to one of a group
of applicants, the ACMA is not to have regard to:
(a) the extent to which the proposed
service would meet the existing and perceived future needs of the community
within the licence area of the proposed licence; and
(b) the nature and diversity of the
interests of that community; and
(c) the nature and diversity of other
broadcasting services (including national broadcasting services) available
within that licence area; and
(d) the capacity of the applicant to
provide the proposed service.
92F
Licences to accord with alternative planning procedures
The ACMA is not to allocate a temporary
community broadcasting licence except in accordance with a determination of the
ACMA under section 34.
92G
Licence area, timing conditions and licence period
(1) Before allocating a temporary community
broadcasting licence, the ACMA is to:
(a) designate a particular area in Australia
as the licence area of the licence; and
(b) determine the timing conditions of
the licence; and
(c) determine a period of up to 12
months as the licence period.
(2) In determining the timing conditions and
licence period, the ACMA is to have regard to:
(a) any other applications for
temporary community broadcasting licences in the licence area of the proposed
licence; and
(b) any other temporary community
broadcasting licences in the licence area of the proposed licence; and
(c) such other matters as the ACMA
thinks fit.
92H
Conditions of temporary community broadcasting licences
Each temporary community broadcasting
licence is subject to:
(a) the conditions set out in Part 5
(other than paragraph 9(1)(h)) of Schedule 2; and
(b) the timing conditions; and
(c) such other conditions as are
imposed under section 92J.
92J ACMA
may vary conditions or periods, or impose new conditions
(1) The ACMA may, by notice in writing given
to a temporary community broadcasting licensee:
(a) vary or revoke a condition of the
licence (including a timing condition); or
(b) impose an additional condition on
the licence; or
(c) vary the licence period.
(2) Without limiting subsection (1), the
ACMA may impose an additional condition on a licence:
(a) requiring the licensee to comply
with a code of practice that is applicable to the licensee; or
(b) designed to ensure that a breach
of a condition by the licensee does not recur.
(3) An additional condition of a licence must
be relevant to community broadcasting services.
(4) If the ACMA proposes to vary or revoke a
condition, impose an additional condition or vary the licence period, the ACMA
is to give to the licensee:
(a) written notice of its intention;
and
(b) a reasonable opportunity to make
representations to the ACMA in relation to the proposed action.
(5) This
section does not allow the ACMA:
(a) to vary or revoke a condition set
out in Part 5 of Schedule 2; or
(b) to vary or revoke a timing condition
so that there are no times in which the licence allows community broadcasting
services to be provided; or
(c) to vary the licence period so that
the period is longer than 12 months.
(6) If the ACMA varies or revokes a condition
(other than a timing condition), imposes an additional condition or varies the
licence period, the ACMA is to publish the fact of the variation, revocation or
additional condition in the Gazette.
(7) Action taken under subsection (1)
must not be inconsistent with:
(a) determinations and clarifications
under section 19; or
(b) conditions set out in Part 5
(other than paragraph 9(1)(h)) of Schedule 2.
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.
Part 7—Subscription television broadcasting services
Division 1—Allocation of subscription television broadcasting licences
94
Transmission system standards
(1) If, after licence A and licence B have
been allocated, both licensee A and licensee B agree as to a standard for a full
digital transmission system, the Minister must, subject to subsection (2),
declare by notice in the Gazette that standard to be the standard that
must be used by all satellite subscription television broadcasting licensees.
(2) Before declaring a standard under subsection (1),
the Minister must consult with the operator of the subscription television
satellite in relation to the efficient use of the satellite.
(3) If licensee A and licensee B do not agree
by 1 March 1994, the Minister must declare, by notice in the Gazette,
a standard chosen by the Minister for a full digital transmission system to be
the standard that must be used by all satellite subscription television
broadcasting licensees.
(4) Before declaring a standard under subsection (3),
the Minister must:
(a) consult with licensee A and
licensee B; and
(b) consult with the operator of the
subscription television satellite in relation to the efficient use of the
satellite; and
(c) have regard to any relevant
international standard.
(5) The standard must employ reception
equipment that is capable of being manufactured in Australia, whether under
licence or otherwise.
(6) Each
satellite subscription television broadcasting licence is subject to the
condition that the licensee will provide services using a transmission system
in accordance with the standard determined under this section.
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 formed in Australia or in an external Territory and has a share
capital; or
(b) the ACMA decides that subsection
98(2) applies to the applicant.
(2) Paragraph (1)(b) does not require
the ACMA to consider the application of subsection 98(2) in relation to an
applicant before a subscription television broadcasting licence is allocated to
the applicant.
96
Allocation of other subscription television broadcasting licences
(1) The ACMA may allocate to a person, on
application in writing by the person, a subscription television broadcasting
licence.
(2) Licences under subsection (1) are to
be allocated on the basis of one licence per service.
(4) Applications
must:
(a) be in accordance with a form approved
in writing by the ACMA; and
(b) be accompanied by the application
fee determined by the ACMA.
(5) The ACMA
must not allocate a subscription television broadcasting licence under this
section if the Australian 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 Trade Practices Act 1974 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 Trade Practices 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 Trade Practices Act 1974 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 Trade Practices Act 1974 applies as if the allocation of a
licence under this Part were a matter referred to in subsection (1) of
that section.
98
Suitability for allocation of licence
(1) For the purposes of this Part, a company
is a suitable subscription television broadcasting licensee or a suitable
applicant for a subscription television broadcasting licence if the ACMA has
not decided that subsection (2) applies to the person.
(2) The ACMA may, if it is satisfied that
allocating a subscription television broadcasting licence to a particular
company or allowing a particular company to continue to hold a subscription
television broadcasting licence would lead to a significant risk of:
(a) an offence against this Act or the
regulations being committed; or
(aa) a breach of a civil penalty
provision occurring; or
(b) a breach of the conditions of the
licence occurring;
decide that this subsection applies to the company.
(3) In deciding whether such a risk exists,
the ACMA is to take into account:
(a) the business record of the
company; and
(b) the company’s record in situations
requiring trust and candour; and
(c) the business record of each person
who is, or would be, if a subscription television broadcasting licence were
allocated to the applicant, in a position to exercise control of the licence;
and
(d) the record in situations requiring
trust and candour of each such person; and
(e) whether the company, or a person
referred to in paragraph (c) or (d), has been convicted of an offence
against this Act or the regulations; and
(f) whether a civil penalty order has
been made against:
(i) the company; or
(ii) a person referred to
in paragraph (c) or (d).
(4) This section does not affect the
operation of Part VIIC of the Crimes Act 1914 (which includes
provisions that, in certain circumstances, relieve persons from the requirement
to disclose 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 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.
Division 2—Conditions of subscription television broadcasting licence
99
Conditions applicable to subscription television broadcasting licence
(1) The conditions set out in Part 6 of
Schedule 2 apply to the provision by a subscription television
broadcasting licensee of a subscription television broadcasting service.
(2) The ACMA may, by notice in writing given
to a subscription television broadcasting licensee, specify additional
conditions to which the licence is subject or vary or revoke a condition
imposed under this subsection.
(4) If the ACMA proposes to impose a new
condition or to vary or revoke a condition, the ACMA must:
(a) give to the licensee written
notice of its intention; and
(b) give to the licensee a reasonable
opportunity to make representations to the ACMA in relation to the proposed
action; and
(c) publish the proposed changes in
the Gazette.
(5) This section does not allow the ACMA to
vary or revoke a condition set out in Part 6 of Schedule 2.
(6) If the ACMA varies or revokes a condition
or imposes a new condition, the ACMA must publish the variation, the fact of
the revocation or the new condition, as the case may be, in the Gazette.
(7) Action taken under this section must not
be inconsistent with:
(a) determinations and clarifications
under section 19; or
(b) conditions set out in Part 6
of Schedule 2.
100
Matters to which conditions may relate
(1) Conditions of a subscription television
broadcasting licence must be relevant to subscription television broadcasting
services.
(2) Without
limiting the range of conditions that may be imposed, the ACMA may impose a
condition:
(a) requiring a licensee to comply
with a code of practice that is applicable to the licensee; or
(b) designed to ensure that a breach
of a condition by a subscription television broadcasting licensee does not
recur; or
(c) designed to ensure compliance with
the film classification system provided for by the Classification (Publications,
Films and Computer Games) Act 1995.
(3) The ACMA must impose conditions on
satellite subscription television broadcasting licences:
(a) designed to ensure that the
domestic reception equipment used by each satellite subscription television broadcasting
licensee is accessible by other satellite broadcasting services; and
(b) designed to ensure that each
satellite subscription television broadcasting licensee that has a subscriber
management system provides access to that system to other satellite
subscription television broadcasting licensees at a fair price.
(4) The Minister may direct the ACMA to
impose a condition under this section designed to ensure that subscription
television broadcasting licensees adequately involve Australian industry in the
provision of services under those licences.
(4A) Conditions under subsection (4) may be
different for different classes of licensees.
(5) The ACMA must impose a condition on all
subscription television broadcasting licences requiring each licensee to make
available, as an option, domestic reception equipment on a rental basis.
(6) The ACMA must impose a condition on all
non‑satellite subscription television broadcasting licences requiring
that, if a licensee rents domestic reception equipment to a consumer, the
rental agreement must allow the consumer to terminate the agreement on giving
one month’s written notice to the licensee.
Division 2A—Eligible drama expenditure
Subdivision A—Introduction
103A
Simplified outline
The following is a simplified outline of
this Division:
• This Division requires
subscription television broadcasting licensees to ensure the maintenance of
minimum levels of expenditure on new eligible drama programs.
• An eligible drama
program is a drama program that is an Australian program, an
Australian/New Zealand program, a New Zealand program or an Australian official
co‑production.
• If
a licensee provides a subscription TV drama service, expenditure on new
eligible drama programs for each financial year must be at least 10% of total
program expenditure.
• If a channel provider
supplies a channel that is televised on a subscription TV drama service, the
10% expenditure requirement is calculated by reference to the expenditure
incurred by the channel provider.
• If a channel provider
supplies a channel that is televised on a subscription TV drama service and the
10% expenditure requirement is not met for a particular financial year, the
shortfall will have to be made up in the next financial year.
• If expenditure on new eligible
drama programs for a financial year exceeds the 10% expenditure requirement,
the excess expenditure may be carried forward to the next financial year.
• Licensees and channel
providers are required to lodge annual returns about their program expenditure.
103B
Definitions
In this
Division:
acquiring, in relation to a drama program,
includes acquiring rights in relation to the program.
Australian Content Standard means:
(a) the Broadcasting Services
(Australian Content) Standard 2005 as in force from time to time; or
(b) if the standard mentioned in paragraph (a)
is not in force, but there is in force another standard that is a successor
(whether immediate or not) to the standard mentioned in paragraph (a)—that
other standard as in force from time to time.
carry‑forward eligible drama expenditure
provision means:
(a) subsection 103NA(2); or
(b) subsection 103RA(2); or
(c) subsection 103TA(2); or
(d) subsection 103UA(2); or
(e) subsection 103XA(2); or
(f) subsection 103ZAA(2).
channel means a continuous stream of
programs.
channel provider has the meaning given by
section 103C.
compliance certificate means a certificate
under section 103ZE.
designated script development expenditure, in
relation to a program, means expenditure incurred in developing the screenplay
or a script outline for the program, where:
(a) the program is a drama program;
and
(b) the expenditure is incurred by a
person (the first person) under a contract with another person
who is not a director, officer or employee of the first person; and
(c) the writer, or each of the
writers, involved in developing the screenplay or script outline is:
(i) a citizen or permanent
resident of Australia; or
(ii) a citizen or permanent
resident of New Zealand; and
(d) the producer of the program is:
(i) a citizen or permanent
resident of Australia; or
(ii) a citizen or permanent
resident of New Zealand; and
(e) the expenditure is paid before the
commencement of principal photography for the program; and
(f) the expenditure is paid on or
after 1 January 2006.
For the purposes of paragraph (d), producer
has the same meaning as in the Australian Content Standard.
drama program means:
(a) a program that has a fully
scripted screenplay in which the dramatic elements of character, theme and plot
are introduced and developed to form a narrative structure; or
(b) a program that has:
(i) a partially scripted
screenplay in which the dramatic elements of character, theme and plot are
introduced and developed to form a narrative structure; and
(ii) actors delivering
improvised dialogue that is based on a script outline or outlines developed by
a writer or writers; or
(c) a program that has actors
delivering improvised dialogue that is based on a script outline or outlines:
(i) developed by a writer
or writers; and
(ii) in which the dramatic
elements of character, theme and plot are introduced and developed to form a
narrative structure;
and includes:
(d) a fully scripted sketch comedy
program; and
(e) an animated drama; and
(f) a dramatised documentary;
but does not include:
(g) a program that involves the
incidental use of actors; or
(h) advertising or sponsorship matter
(whether or not of a commercial kind).
eligible drama program means:
(a) a drama program that is an
Australian program (within the meaning of the Australian Content Standard); or
(b) a drama program that is an
Australian/New Zealand program (within the meaning of the Australian Content
Standard); or
(c) a
drama program that is a New Zealand program (within the meaning of the
Australian Content Standard); or
(d) a drama program that is an
Australian official co‑production (within the meaning of the Australian
Content Standard).
expenditure, in relation to a program or
program material, means:
(a) expenditure incurred in acquiring
the program or program material; or
(b) expenditure incurred in producing
the program or program material; or
(c) pre‑production expenditure
incurred in relation to the program or program material; or
(d) expenditure incurred by way of the
making of an investment in the program or program material;
and includes nil expenditure.
Note: Section 103H sets out a special rule for non‑designated
pre‑production expenditure.
financial year means:
(a) the financial year beginning on 1 July 1999; or
(b) a later financial year.
incidental matter means:
(a) advertising or sponsorship matter
(whether or not of a commercial kind); or
(b) a program promotion; or
(c) an announcement; or
(d) a hosting; or
(e) any other interstitial program.
licensee means a subscription television
broadcasting licensee.
new, in relation to an eligible drama
program, has the meaning given by section 103K.
non‑designated pre‑production expenditure
means pre‑production expenditure other than designated script development
expenditure.
part‑channel provider has the meaning
given by section 103D.
part‑pass‑through provider has
the meaning given by section 103F.
pass‑through provider has the meaning
given by section 103E.
pre‑production
expenditure, in relation to a program or program material, means:
(a) expenditure incurred in developing
the screenplay or a script outline for the program or program material; or
(b) any other expenditure incurred by
way of pre‑production costs for the program or program material.
program material does not include advertising
or sponsorship matter (whether or not of a commercial kind).
registered auditor means a person registered
as an auditor, or taken to be registered as an auditor, under Part 9.2 of
the Corporations Act 2001.
subscription TV drama service means a
subscription television broadcasting service devoted predominantly to drama
programs.
103C
Channel providers
For the purposes of this Division, a channel
provider, in relation to a subscription TV drama service provided by a
licensee, is a person who:
(a) packages a channel (which may
include programs produced by the person); and
(b) supplies the licensee with the
channel; and
(c) carries on a business in Australia,
by means of a principal office or of a branch, that involves the supply of the
channel;
where, apart from any breaks for the purposes of the
transmission of incidental matter, the channel is televised by the licensee on
the subscription TV drama service.
103D
Part‑channel providers
For the purposes of this Division, a part‑channel
provider, in relation to a subscription TV drama service provided by a
licensee, is a person who:
(a) assembles a package of programs
(which may include programs produced by the person); and
(b) supplies the licensee with the
package; and
(c) carries on a business in Australia,
by means of a principal office or of a branch, that involves the supply of the
package;
where:
(d) the package consists predominantly
of drama programs; and
(e) the package constitutes a
significant proportion of the program material that is televised by the
licensee on the subscription TV drama service; and
(f) there is neither:
(i) a channel provider;
nor
(ii) a pass‑through
provider;
in relation to the subscription
TV drama service.
103E
Pass‑through providers
For the purposes of this Division, a pass‑through
provider, in relation to a subscription TV drama service provided by a
licensee, is a person who:
(a) packages a channel (which may
include programs produced by the person); and
(b) supplies the licensee with the
channel; and
(c) does not carry on a business in Australia,
by means of a principal office or of a branch, that involves the supply of the
channel;
where, apart from any breaks for the purposes of the
transmission of incidental matter, the channel is televised by the licensee on
the subscription TV drama service.
103F
Part‑pass‑through providers
For the purposes of this Division, a part‑pass‑through
provider, in relation to a subscription TV drama service provided by a
licensee, is a person who:
(a) assembles a package of programs
(which may include programs produced by the person); and
(b) supplies the licensee with the
package; and
(c) does not carry on a business in Australia,
by means of a principal office or of a branch, that involves the supply of the
package;
where:
(d) the package consists predominantly
of drama programs; and
(e) the package constitutes a
significant proportion of the program material that is televised by the
licensee on the subscription TV drama service; and
(f) there is neither:
(i) a channel provider;
nor
(ii) a pass‑through
provider;
in relation to the subscription
TV drama service.
103G
Supply of channel or package
For the purposes of this Division, a
person is taken to have supplied a channel, or a package of programs, to a
licensee if the channel or package, as the case may be, is supplied to the
licensee by the person:
(a) directly; or
(b) indirectly through one or more
interposed persons.
103H Non‑designated
pre‑production expenditure not to be counted unless principal photography
has commenced
For the purposes of this Division, non‑designated
pre‑production expenditure is not to be counted unless principal
photography has commenced for the program or program material concerned.
103J
Cash‑based accounting—when expenditure is incurred
(1) For the purposes of this Division:
(a) if the whole of an item of
expenditure (other than non‑designated pre‑production expenditure)
is paid at a particular time—the expenditure is incurred when the expenditure
is paid; and
(b) if different parts of an item of
expenditure (other than non‑designated pre‑production expenditure)
are paid at different times—each part is incurred when the part is paid.
(2) For the
purposes of this Division:
(a) if the whole of an item of non‑designated
pre‑production expenditure is paid at a particular time—the expenditure
is incurred at whichever is the later of the following times:
(i) the time when the
expenditure is paid;
(ii) the commencement of
principal photography for the program or program material concerned; and
(b) if different parts of an item of non‑designated
pre‑production expenditure are paid at different times—each part is
incurred at whichever is the later of the following times:
(i) the time when the part
is paid;
(ii) the commencement of
principal photography for the program or program material concerned.
103JA
When designated script development expenditure is incurred in relation to an
eligible drama program etc.
(1) If:
(a) during a financial year, a person
incurs designated script development expenditure in relation to a drama
program; and
(b) principal photography did not
commence for the program before the end of the financial year;
this Division has effect, in relation to that expenditure,
as if the drama program were an eligible drama program.
Recoupment of expenditure incurred by a person—program
is not produced as an eligible drama program
(2) If:
(a) during a financial year (the first
financial year), a person incurred designated script development
expenditure in relation to a drama program; and
(b) principal photography did not
commence for the program before the end of the first financial year; and
(c) principal photography commences
for the program during a later financial year; and
(d) when principal photography
commences for the program, the drama program is not an eligible drama program;
and
(e) the person nominated the whole or
a part of the designated script development expenditure for the purposes of the
application of a particular provision of this Division in relation to a
subscription TV drama service;
then, for the purposes of the application of this Division
to the subscription TV drama service, the total expenditure incurred by the
person during the later financial year on new eligible drama programs is taken
to be reduced (but not below zero) by the amount of the whole or the part, as
the case may be, of the expenditure referred to in paragraph (e).
Recoupment of expenditure incurred by a pass‑through
provider—program is not produced as an eligible drama program
(3) If:
(a) during a financial year (the first
financial year), a person incurred designated script development
expenditure in relation to a drama program; and
(b) the person is a pass‑through
provider in relation to a subscription TV drama service because the person
supplies a channel; and
(c) principal photography did not
commence for the program before the end of the first financial year; and
(d) principal photography commences
for the program during a later financial year; and
(e) when principal photography
commences for the program, the drama program is not an eligible drama program;
and
(f) the licensee who provided the
subscription TV drama service nominated the whole or a part of the designated
script development expenditure for the purposes of the application of a
particular provision of this Division in relation to the subscription TV drama
service;
then, for the purposes of the application of this Division
to the subscription TV drama service, the total expenditure incurred by the
pass‑through provider during the later financial year on new eligible
drama programs is taken to be reduced (but not below zero) by the amount of the
whole or the part, as the case may be, of the expenditure referred to in paragraph (f).
Recoupment of expenditure incurred by a part‑pass‑through
provider—program is not produced as an eligible drama program
(4) If:
(a) during a financial year (the first
financial year), a person incurred designated script development
expenditure in relation to a drama program; and
(b) the person is a part‑pass‑through
provider in relation to a subscription TV drama service because the person
supplies a package of programs; and
(c) principal photography did not
commence for the program before the end of the first financial year; and
(d) principal photography commences
for the program during a later financial year; and
(e) when principal photography
commences for the program, the drama program is not an eligible drama program;
and
(f) the licensee who provided the
subscription TV drama service nominated the whole or a part of the designated
script development expenditure for the purposes of the application of a
particular provision of this Division in relation to the subscription TV drama
service;
then, for the purposes of the application of this Division
to the subscription TV drama service, the total expenditure incurred by the
part‑pass‑through provider during the later financial year on new
eligible drama programs is taken to be reduced (but not below zero) by the
amount of the whole or the part, as the case may be, of the expenditure
referred to in paragraph (f).
103K
When expenditure incurred on a new eligible drama program
(1) For the purposes of this Division, if a
person incurs expenditure on an eligible drama program, the eligible drama
program is new if, and only if, the whole or a substantial part
of the program has not been televised in Australia or New Zealand on a
broadcasting service at any time before the expenditure is incurred.
(2) For the purposes of subsection (1),
it is to be assumed that the definition of broadcasting service
in subsection 6(1) extended to matters and things in New Zealand.
103L ACMA
may make determinations about what constitutes program expenditure
Program material
(1) The ACMA may make a written determination
providing that, for the purposes of this Division, specified expenditure is
taken to be expenditure incurred on program material (other than eligible drama
programs).
(2) The ACMA may make a written determination
providing that, for the purposes of this Division, specified expenditure is
taken not to be expenditure incurred on program material (other than eligible
drama programs).
Eligible drama programs
(3) The ACMA may make a written determination
providing that, for the purposes of this Division, specified expenditure is
taken to be expenditure incurred on an eligible drama program.
(4) The ACMA may make a written determination
providing that, for the purposes of this Division, specified expenditure is
taken not to be expenditure incurred on an eligible drama program.
Designated script development expenditure
(4A) The ACMA may make a written determination
providing that, for the purposes of this Division, specified expenditure is
taken to be designated script development expenditure.
(4B) The ACMA may make a written determination
providing that, for the purposes of this Division, specified expenditure is
taken not to be designated script development expenditure.
Determination has effect
(5) A determination under this section has
effect accordingly.
Determination to be of a legislative character
(6) A determination under this section is to
be an instrument of a legislative character.
Legislative instrument
(7) A determination under this section is a
legislative instrument for the purpose of the Legislative Instruments Act
2003.
Note: For specification by class, see subsection
13(3) of the Legislative Instruments Act 2003.
103M
Expenditure to be nominated only once in meeting licence conditions
Channel provider and part‑channel provider
(1) If:
(a) either:
(i) a person is a channel
provider in relation to a subscription TV drama service provided by a licensee
because the person supplies a channel; or
(ii) a person is a part‑channel
provider in relation to a subscription TV drama service provided by a licensee
because the person supplies a package of programs; and
(b) the
person nominates the whole or a part of particular expenditure for the purposes
of the application of a particular provision of this Division in relation to
the subscription TV drama service;
the whole or part, as the case may be, of the expenditure
must not be nominated by the person for the purposes of:
(c) the application of any other
provision of this Division (other than a carry‑forward eligible drama
expenditure provision) in relation to that service; or
(d) the application of any provision
of this Division in relation to another subscription TV drama service provided
by the licensee; or
(e) the application of any provision
of this Division in relation to another subscription TV drama service provided
by another licensee.
(2) However, the rule in paragraph (1)(e):
(a) does not apply in relation to a
person who is a channel provider if:
(i) the person supplies
the same or a substantially similar channel to the other licensee; and
(ii) apart from any breaks
for the purposes of the transmission of incidental matter, the same or a
substantially similar channel supplied by the person is televised by the other
licensee on the other subscription TV drama service; and
(b) does
not apply in relation to a person who is a part‑channel provider if:
(i) the person supplies
the same or a substantially similar package of programs to the other licensee;
and
(ii) apart from any breaks
for the purposes of the transmission of incidental matter, the same or a
substantially similar package of programs supplied by the person is televised
by the other licensee on the other subscription TV drama service.
Licensee
(3) If:
(a) a licensee provides a subscription
TV drama service; and
(b) the licensee nominates the whole
or a part of particular expenditure for the purposes of the application of a
particular provision of this Division in relation to the subscription TV drama
service;
the whole or part, as the case may be, of the expenditure
must not be nominated by the licensee for the purposes of:
(c) the application of any other
provision of this Division (other than a carry‑forward eligible drama
expenditure provision) in relation to that service; or
(d) the application of any provision
of this Division in relation to another subscription TV drama service provided
by the licensee.
Subdivision B—Channel provider supplies channel
103N
10% minimum eligible drama expenditure—channel provider supplies channel
(1) If:
(a) a licensee provides a subscription
TV drama service; and
(b) a person is a channel provider in
relation to the subscription TV drama service because the person supplies a
channel;
it is a condition of the licence that, for each financial
year of operation, the sum of:
(c) the channel provider’s new
eligible drama expenditure in relation to the subscription TV drama service;
and
(d) the channel provider’s carry‑forward
eligible drama expenditure in relation to the subscription TV drama service;
equals or exceeds 10% of the channel provider’s total
program expenditure in relation to the channel.
(2) In this section:
channel provider’s carry‑forward eligible drama
expenditure, in relation to the subscription TV drama service, means
the channel provider’s carry‑forward eligible drama expenditure (within
the meaning of subsection 103NA(2)) for the financial year.
channel provider’s new eligible drama expenditure,
in relation to the subscription TV drama service, means so much of the total
expenditure incurred by the channel provider during the financial year on new
eligible drama programs as the channel provider nominates for the purposes of
the application of subsection (1) in relation to the subscription TV drama
service.
channel provider’s total program expenditure,
in relation to the channel, means the total expenditure incurred by the channel
provider during the financial year on the program material that is included, or
available to be included, in the channel.
(2A) The channel provider is not entitled to
nominate, under the definition of channel provider’s new eligible drama
expenditure in subsection (2), so much of the designated script
development expenditure incurred by the channel provider during the financial
year as exceeds 10% of the channel provider’s new eligible drama expenditure in
relation to the subscription TV drama service.
(3) Division 3 of Part 10 (which
deals with breaches of conditions) does not apply to the condition set out in subsection (1).
Note: If the sum of the channel provider’s new
eligible drama expenditure and the channel provider’s carry‑forward
eligible drama expenditure is less than 10% of the channel provider’s total
program expenditure, the shortfall will have to be made up in the next financial
year—see sections 103P and 103Q.
103NA
Carry‑forward eligible drama expenditure
(1) This section applies if:
(a) a licensee provides a subscription
TV drama service; and
(b) a person is a channel provider in
relation to the subscription TV drama service because the person supplies a
channel; and
(c) the channel provider’s new
eligible drama expenditure (within the meaning of section 103N) in
relation to the subscription TV drama service for a financial year exceeds 10%
of the channel provider’s total program expenditure (within the meaning of
section 103N) in relation to the channel for the financial year.
(2) For the purposes of section 103N,
the channel provider’s carry‑forward eligible drama expenditure
in relation to the subscription TV drama service for the next following
financial year is so much of the excess expenditure as the channel provider
nominates for the purposes of the application of this subsection in relation to
the subscription TV drama service.
(3) Paragraph (1)(c) does not apply to
so much of the channel provider’s new eligible drama expenditure (within the
meaning of section 103N) in relation to the subscription TV drama service
as was incurred before 1 January 2006.
103P
Shortfall of eligible drama expenditure—channel provider supplies channel
exclusively to licensee
(1) This section applies if:
(a) a licensee (the first
licensee) provides a subscription TV drama service (the first
subscription TV drama service); and
(b) a person is a channel provider in
relation to the subscription TV drama service because the person supplies a
channel (the first channel); and
(c) it is not the case that the
channel provider supplies the same or a substantially similar channel to
another licensee in circumstances where, apart from any breaks for the purposes
of the transmission of incidental matter, the same or substantially similar
channel supplied by the channel provider is televised by the other licensee on
another subscription TV drama service; and
(d) the sum of:
(i) the channel provider’s
new eligible drama expenditure (within the meaning of section 103N) in
relation to the first subscription TV drama service for a particular financial
year (the shortfall year); and
(ii) the channel provider’s
carry‑forward eligible drama expenditure (within the meaning of section 103N)
in relation to the first subscription TV drama service for the shortfall year;
is less than 10% of the channel
provider’s total program expenditure (within the meaning of section 103N)
in relation to the first channel for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the first licensee’s
licence that, for the next financial year (the make‑up year):
(a) the channel provider’s make‑up
expenditure is equal to the shortfall amount; or
(b) the first licensee’s make‑up
expenditure is equal to the shortfall amount; or
(c) the
sum of:
(i) the channel provider’s
make‑up expenditure; and
(ii) the first licensee’s
make‑up expenditure;
is equal to the shortfall
amount.
Definitions
(3) In this
section:
channel provider’s make‑up expenditure
means so much of the total expenditure incurred by the channel provider during
the make‑up year on new eligible drama programs as the channel provider
nominates for the purposes of the application of subsection (2) in
relation to the first subscription TV drama service.
first licensee’s make‑up expenditure
means so much of the total expenditure incurred by the first licensee during
the make‑up year on new eligible drama programs not included, or
available to be included, in the first channel as the first licensee nominates
for the purposes of the application of subsection (2) in relation to the
first subscription TV drama service.
shortfall amount means
the amount by which the sum of:
(a) the channel provider’s new
eligible drama expenditure (within the meaning of section 103N) in
relation to the first subscription TV drama service for the shortfall year; and
(b) the channel provider’s carry‑forward
eligible drama expenditure (within the meaning of section 103N) in
relation to the first subscription TV drama service for the shortfall year;
fell short of 10% of the channel provider’s total program
expenditure (within the meaning of section 103N) in relation to the first
channel for the shortfall year.
103Q
Shortfall of eligible drama expenditure—channel provider supplies channel to
multiple licensees
(1) This section applies if:
(a) a licensee (the first
licensee) provides a subscription TV drama service (the first
subscription TV drama service); and
(b) a person is a channel provider in
relation to the first subscription TV drama service because the person supplies
a channel (the first channel); and
(c) the
channel provider supplies the same or a substantially similar channel to one or
more other licensees (the additional licensees) in
circumstances where, apart from any breaks for the purposes of the transmission
of incidental matter, the same or substantially similar channel supplied by the
channel provider is televised by the additional licensees on subscription TV
drama services (the additional subscription TV drama services);
and
(d) the sum of:
(i) the channel provider’s
new eligible drama expenditure (within the meaning of section 103N) in
relation to the first subscription TV drama service for a particular financial
year (the shortfall year); and
(ii) the channel provider’s
carry‑forward eligible drama expenditure (within the meaning of section 103N)
in relation to the first subscription TV drama service for the shortfall year;
is less than 10% of the channel
provider’s total program expenditure (within the meaning of section 103N)
in relation to the first channel for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the first licensee’s
licence that, for the next financial year (the make‑up year):
(a) the channel provider’s make‑up
expenditure is equal to the shortfall amount; or
(b) the first licensee’s make‑up
expenditure is equal to the first licensee’s subscriber percentage of the
shortfall amount; or
(c) if the channel provider’s make‑up
expenditure is less than the shortfall amount—the first licensee’s make‑up
expenditure is equal to the first licensee’s subscriber percentage of the
difference between the shortfall amount and the channel provider’s make‑up
expenditure.
Definitions
(3) In this section:
channel provider’s make‑up expenditure
means so much of the total expenditure incurred by the channel provider during
the make‑up year on new eligible drama programs as the channel provider
nominates for the purposes of the application of subsection (2) in
relation to the first subscription TV drama service.
first licensee’s make‑up expenditure
means so much of the total expenditure incurred by the first licensee during
the make‑up year on new eligible drama programs not included, or
available to be included, in the first channel as the first licensee nominates
for the purposes of the application of subsection (2) in relation to the
first subscription TV drama service.
first licensee’s subscriber percentage means
the percentage worked out using the following formula:
monthly subscriber number, for a subscription
TV drama service for a particular month, means the number worked out using the
following formula:
shortfall amount means the amount by which
the sum of:
(a) the channel provider’s new
eligible drama expenditure (within the meaning of section 103N) in
relation to the first subscription TV drama service for the shortfall year; and
(b) the channel provider’s carry‑forward
eligible drama expenditure (within the meaning of section 103N) in
relation to the first subscription TV drama service for the shortfall year;
fell short of 10% of the channel provider’s total program
expenditure (within the meaning of section 103N) in relation to the first
channel for the shortfall year.
subscribers of additional licensees means the
sum of the monthly subscriber numbers for the additional subscription TV drama
services for each month of operation during the shortfall year.
subscribers of first licensee means the sum
of the monthly subscriber numbers for the first subscription TV drama service
for each month of operation during the shortfall year.
Subdivision C—Pass‑through provider supplies channel
103R
10% minimum eligible drama expenditure—pass‑through provider supplies
channel
(1) If:
(a) a licensee provides a subscription
TV drama service; and
(b) a person is a pass‑through
provider in relation to the subscription TV drama service because the person
supplies a channel;
it is a condition of the licence that, for each financial
year of operation, the sum of:
(c) the licensee’s new eligible drama
expenditure in relation to the subscription TV drama service; and
(d) the licensee’s carry‑forward
eligible drama expenditure in relation to the subscription TV drama service;
equals or exceeds 10% of the licensee’s total program
expenditure in relation to the channel.
(2) In this section:
licensee’s carry‑forward eligible drama
expenditure, in relation to the subscription TV drama service, means
the licensee’s carry‑forward eligible drama expenditure (within the
meaning of subsection 103RA(2)) for the financial year.
licensee’s new eligible drama expenditure, in
relation to the subscription TV drama service, means the sum of:
(a) so much of the total expenditure
incurred by the licensee during the financial year on new eligible drama
programs as the licensee nominates for the purposes of the application of subsection (1)
in relation to the subscription TV drama service; and
(b) so much of the total expenditure
incurred by the pass‑through provider during the financial year on new
eligible drama programs as the licensee nominates for the purposes of the
application of subsection (1) in relation to the subscription TV drama
service.
licensee’s total program expenditure, in
relation to the channel, means the total expenditure incurred by the licensee
during the financial year in respect of the supply by the pass‑through
provider of the channel.
(2A) The licensee is not entitled to nominate,
under the definition of licensee’s new eligible drama expenditure
in subsection (2), so much of the designated script development
expenditure incurred by the licensee and/or the pass‑through provider
during the financial year as exceeds 10% of the licensee’s new eligible drama
expenditure in relation to the subscription TV drama service.
(3) If:
(a) the licensee nominates the whole
or a part of particular expenditure under paragraph (a) of the definition
of licensee’s new eligible drama expenditure in subsection (2);
and
(b) the whole or part, as the case may
be, of the expenditure is attributable to a new eligible drama program on which
expenditure was incurred by the pass‑through provider;
that new eligible drama program is to be disregarded in
determining the expenditure that may be nominated by the licensee under paragraph (b)
of that definition.
(4) Division 3
of Part 10 (which deals with breaches of conditions) does not apply to the
condition set out in subsection (1).
Note: If the sum of the licensee’s new eligible
drama expenditure and the licensee’s carry‑forward eligible drama
expenditure is less than 10% of the licensee’s total program expenditure, the
shortfall will have to be made up in the next financial year—see section 103S.
103RA
Carry‑forward eligible drama expenditure
(1) This section applies if:
(a) a licensee provides a subscription
TV drama service; and
(b) a person is a pass‑through
provider in relation to the subscription TV drama service because the person
supplies a channel; and
(c) the licensee’s new eligible drama
expenditure (within the meaning of section 103R) in relation to the
subscription TV drama service for a financial year exceeds 10% of the
licensee’s total program expenditure (within the meaning of section 103R)
in relation to the channel for the financial year.
(2) For the purposes of section 103R,
the licensee’s carry‑forward eligible drama
expenditure in relation to the subscription TV drama service for the
next following financial year is so much of the excess expenditure as the
licensee nominates for the purposes of the application of this subsection in
relation to the subscription TV drama service.
(3) Paragraph (1)(c) does not apply to
so much of the licensee’s new eligible drama expenditure (within the meaning of
section 103R) in relation to the subscription TV drama service as was
incurred before 1 January 2006.
103S
Shortfall of eligible drama expenditure—pass‑through provider supplies
channel
(1) This
section applies if:
(a) a licensee provides a subscription
TV drama service; and
(b) a person is a pass‑through
provider in relation to the subscription TV drama service because the person
supplies a channel; and
(c) the sum of:
(i) the licensee’s new
eligible drama expenditure (within the meaning of section 103R) in
relation to the subscription TV drama service for a particular financial year
(the shortfall year); and
(ii) the licensee’s carry‑forward
eligible drama expenditure (within the meaning of section 103R) in
relation to the subscription TV drama service for the shortfall year;
is less than 10% of the
licensee’s total program expenditure (within the meaning of section 103R)
in relation to the channel for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the licensee’s
licence that, for the next financial year (the make‑up year),
the licensee’s make‑up expenditure is equal to the shortfall amount.
Definitions
(3) In this section:
licensee’s make‑up expenditure, in
relation to the subscription TV drama service, means the sum of:
(a) so much of the total expenditure
incurred by the licensee during the make‑up year on new eligible drama
programs as the licensee nominates for the purposes of the application of subsection (2)
in relation to the subscription TV drama service; and
(b) so much of the total expenditure
incurred by the pass‑through provider during the make‑up year on
new eligible drama programs as the licensee nominates for the purposes of the
application of subsection (2) in relation to the subscription TV drama
service.
shortfall amount means the amount by which
the sum of:
(a) the licensee’s new eligible drama
expenditure (within the meaning of section 103R) in relation to the
subscription TV drama service for the shortfall year; and
(b) the licensee’s carry‑forward
eligible drama expenditure (within the meaning of section 103R) in
relation to the subscription TV drama service for the shortfall year;
fell short of 10% of the licensee’s total program
expenditure (within the meaning of section 103R) in relation to the
channel for the shortfall year.
Double counting
(4) If:
(a) the licensee nominates the whole
or a part of particular expenditure under paragraph (a) of the definition
of licensee’s make‑up expenditure in subsection (3);
and
(b) the whole or part, as the case may
be, of the expenditure is attributable to a new eligible drama program on which
expenditure was incurred by the pass‑through provider;
that new eligible drama program is to be disregarded in
determining the expenditure that may be nominated by the licensee under paragraph (b)
of that definition.
Subdivision D—Licensee supplies all program material
103T
10% minimum eligible drama expenditure—licensee supplies all program material
(1) If:
(a) a licensee provides a subscription
TV drama service; and
(b) there is none of the following:
(i) a channel provider;
(ii) a pass‑through
provider;
(iii) a part‑channel
provider;
(iv) a part‑pass‑through
provider;
in relation to the subscription
TV drama service;
it is a condition of the licence that, for each financial
year of operation, the sum of:
(c) the licensee’s new eligible drama
expenditure in relation to the subscription TV drama service; and
(d) the licensee’s carry‑forward
eligible drama expenditure in relation to the subscription TV drama service;
equals or exceeds 10% of the licensee’s total program
expenditure in relation to the subscription TV drama service.
(2) In this section:
licensee’s carry‑forward eligible drama
expenditure, in relation to the subscription TV drama service, means
the licensee’s carry‑forward eligible drama expenditure (within the
meaning of subsection 103TA(2)) for the financial year.
licensee’s new eligible drama expenditure, in
relation to the subscription TV drama service, means so much of the total
expenditure incurred by the licensee during the financial year on new eligible
drama programs as the licensee nominates for the purposes of the application of
subsection (1) in relation to the subscription TV drama service.
licensee’s total program expenditure, in
relation to the subscription TV drama service, means the total expenditure
incurred by the licensee during the financial year on program material that is
for televising, or available for televising, by the licensee on the subscription
TV drama service.
(3) The licensee is not entitled to nominate,
under the definition of licensee’s new eligible drama expenditure
in subsection (2), so much of the designated script development
expenditure incurred by the licensee during the financial year as exceeds 10%
of the licensee’s new eligible drama expenditure in relation to the
subscription TV drama service.
103TA
Carry‑forward eligible drama expenditure
(1) This section applies if:
(a) a licensee provides a subscription
TV drama service; and
(b) there is none of the following:
(i) a channel provider;
(ii) a pass‑through
provider;
(iii) a part‑channel
provider;
(iv) a part‑pass‑through
provider;
in relation to the subscription
TV drama service; and
(c) the licensee’s new eligible drama
expenditure (within the meaning of section 103T) in relation to the
subscription TV drama service for a financial year exceeds 10% of the
licensee’s total program expenditure (within the meaning of section 103T)
in relation to the subscription TV drama service for the financial year.
(2) For the purposes of section 103T,
the licensee’s carry‑forward eligible drama expenditure in
relation to the subscription TV drama service for the next following financial
year is so much of the excess expenditure as the licensee nominates for the
purposes of the application of this subsection in relation to the subscription
TV drama service.
(3) Paragraph (1)(c) does not apply to
so much of the licensee’s new eligible drama expenditure (within the meaning of
section 103T) in relation to the subscription TV drama service as was
incurred before 1 January 2006.
Subdivision E—Part‑channel provider supplies package of programs
103U
10% minimum eligible drama expenditure—part‑channel provider supplies
package of programs
(1) If:
(a) a licensee provides a subscription
TV drama service; and
(b) a person is a part‑channel
provider in relation to the subscription TV drama service because the person
supplies a package of programs;
it is a condition of the licence that, for each financial
year of operation, the sum of:
(c) the part‑channel provider’s
new eligible drama expenditure in relation to the subscription TV drama
service; and
(d) the part‑channel provider’s
carry‑forward eligible drama expenditure in relation to the subscription
TV drama service;
equals or exceeds 10% of the part‑channel provider’s
total program expenditure in relation to the package of programs.
(2) In this section:
part‑channel provider’s carry‑forward
eligible drama expenditure, in relation to the subscription TV drama
service, means the part‑channel provider’s carry‑forward eligible
drama expenditure (within the meaning of subsection 103UA(2)) for the financial
year.
part‑channel provider’s new eligible drama
expenditure, in relation to the subscription TV drama service, means so
much of the total expenditure incurred by the part‑channel provider
during the financial year on new eligible drama programs as the part‑channel
provider nominates for the purposes of the application of subsection (1)
in relation to the subscription TV drama service.
part‑channel provider’s total program
expenditure, in relation to the package of programs, means the total
expenditure incurred by the part‑channel provider during the financial
year on the program material that is included, or available to be included, in
the package of programs.
(2A) The part‑channel provider is not
entitled to nominate, under the definition of part‑channel
provider’s new eligible drama expenditure in subsection (2), so
much of the designated script development expenditure incurred by the part‑channel
provider during the financial year as exceeds 10% of the part‑channel
provider’s new eligible drama expenditure in relation to the subscription TV
drama service.
(3) Division 3 of Part 10 (which
deals with breaches of conditions) does not apply to the condition set out in subsection (1).
Note: If the sum of the part‑channel
provider’s new eligible drama expenditure and the part‑channel provider’s
carry‑forward eligible drama expenditure is less than 10% of the part‑channel
provider’s total program expenditure, the shortfall will have to be made up in
the next financial year—see sections 103V and 103W.
103UA
Carry‑forward eligible drama expenditure
(1) This section applies if:
(a) a licensee provides a subscription
TV drama service; and
(b) a person is a part‑channel
provider in relation to the subscription TV drama service because the person
supplies a package of programs; and
(c) the part‑channel provider’s
new eligible drama expenditure (within the meaning of section 103U) in
relation to the subscription TV drama service for a financial year exceeds 10%
of the part‑channel provider’s total program expenditure (within the
meaning of section 103U) in relation to the package of programs for the
financial year.
(2) For the purposes of section 103U,
the part‑channel provider’s carry‑forward eligible drama
expenditure in relation to the subscription TV drama service for the
next following financial year is so much of the excess expenditure as the part‑channel
provider nominates for the purposes of the application of this subsection in
relation to the subscription TV drama service.
(3) Paragraph (1)(c) does not apply to
so much of the part‑channel provider’s new eligible drama expenditure
(within the meaning of section 103U) in relation to the subscription TV
drama service as was incurred before 1 January 2006.
103V
Shortfall of eligible drama expenditure—part‑channel provider supplies a
package of programs exclusively to licensee
(1) This section applies if:
(a) a licensee (the first
licensee) provides a subscription TV drama service (the first
subscription TV drama service); and
(b) a person is a part‑channel
provider in relation to the subscription TV drama service because the person
supplies a package of programs (the first package of programs);
and
(c) it is not the case that the part‑channel
provider supplies the same or a substantially similar package of programs to
another licensee in circumstances where, apart from any breaks for the purposes
of the transmission of incidental matter, the same or substantially similar
package of programs supplied by the part‑channel provider is televised by
the other licensee on another subscription TV drama service; and
(d) the sum of:
(i) the part‑channel
provider’s new eligible drama expenditure (within the meaning of section 103U)
in relation to the first subscription TV drama service for a particular
financial year (the shortfall year); and
(ii) the part‑channel
provider’s carry‑forward eligible drama expenditure (within the meaning
of section 103U) in relation to the first subscription TV drama service
for the shortfall year;
is less than 10% of the part‑channel
provider’s total program expenditure (within the meaning of section 103U)
in relation to the first package of programs for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the first licensee’s
licence that, for the next financial year (the make‑up year):
(a) the part‑channel provider’s
make‑up expenditure is equal to the shortfall amount; or
(b) the first licensee’s make‑up
expenditure is equal to the shortfall amount; or
(c) the sum of:
(i) the part‑channel
provider’s make‑up expenditure; and
(ii) the first licensee’s
make‑up expenditure;
is equal to the shortfall
amount.
Definitions
(3) In this section:
first licensee’s make‑up expenditure
means so much of the total expenditure incurred by the first licensee during
the make‑up year on new eligible drama programs not included, or
available to be included, in the first package of programs as the first
licensee nominates for the purposes of the application of subsection (2)
in relation to the first subscription TV drama service.
part‑channel provider’s make‑up
expenditure means so much of the total expenditure incurred by the part‑channel
provider during the make‑up year on new eligible drama programs as the
part‑channel provider nominates for the purposes of the application of subsection (2)
in relation to the first subscription TV drama service.
shortfall amount means
the amount by which the sum of:
(a) the part‑channel provider’s
new eligible drama expenditure (within the meaning of section 103U) in
relation to the first subscription TV drama service for the shortfall year; and
(b) the part‑channel provider’s
carry‑forward eligible drama expenditure (within the meaning of section 103U)
in relation to the first TV drama service for the shortfall year;
fell short of 10% of the part‑channel provider’s
total program expenditure (within the meaning of section 103U) in relation
to the first package of programs for the shortfall year.
103W
Shortfall of eligible drama expenditure—part‑channel provider supplies a
package of programs to multiple licensees
(1) This section applies if:
(a) a licensee (the first
licensee) provides a subscription TV drama service (the first
subscription TV drama service); and
(b) a person is a part‑channel
provider in relation to the first subscription TV drama service because the
person supplies a package of programs (the first package of programs);
and
(c) the part‑channel provider
supplies the same or a substantially similar package of programs to one or more
other licensees (the additional licensees) in
circumstances where, apart from any breaks for the purposes of the transmission
of incidental matter, the same or substantially similar package of programs
supplied by the part‑channel provider is televised by the additional
licensees on subscription TV drama services (the additional subscription
TV drama services); and
(d) the sum of:
(i) the part‑channel
provider’s new eligible drama expenditure (within the meaning of section 103U)
in relation to the first subscription TV drama service for a particular
financial year (the shortfall year); and
(ii) the part‑channel
provider’s carry‑forward eligible drama expenditure (within the meaning
of section 103U) in relation to the first subscription TV drama service
for the shortfall year;
is less than 10% of the part‑channel
provider’s total program expenditure (within the meaning of section 103U)
in relation to the first package of programs for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the first licensee’s
licence that, for the next financial year (the make‑up year):
(a) the part‑channel provider’s
make‑up expenditure is equal to the shortfall amount; or
(b) the first licensee’s make‑up
expenditure is equal to the first licensee’s subscriber percentage of the
shortfall amount; or
(c) if the part‑channel
provider’s make‑up expenditure is less than the shortfall amount—the
first licensee’s make‑up expenditure is equal to the first licensee’s
subscriber percentage of the difference between the shortfall amount and the
part‑channel provider’s make‑up expenditure.
Definitions
(3) In this section:
first licensee’s make‑up expenditure
means so much of the total expenditure incurred by the first licensee during
the make‑up year on new eligible drama programs not included, or
available to be included, in the first package of programs as the first
licensee nominates for the purposes of the application of subsection (2)
in relation to the first subscription TV drama service.
first licensee’s subscriber percentage means
the percentage worked out using the following formula:
monthly subscriber number, for a subscription
TV drama service for a particular month, means the number worked out using the
following formula:
part‑channel provider’s make‑up
expenditure means so much of the total expenditure incurred by the part‑channel
provider during the make‑up year on new eligible drama programs as the
part‑channel provider nominates for the purposes of the application of subsection (2)
in relation to the first subscription TV drama service.
shortfall amount means
the amount by which the sum of:
(a) the part‑channel provider’s
new eligible drama expenditure (within the meaning of section 103U) in
relation to the first subscription TV drama service for the shortfall year; and
(b) the part‑channel provider’s
carry‑forward eligible drama expenditure (within the meaning of section 103U)
in relation to the first TV drama service for the shortfall year;
fell short of 10% of the part‑channel provider’s
total program expenditure (within the meaning of section 103U) in relation
to the first package of programs for the shortfall year.
subscribers of additional licensees means the
sum of the monthly subscriber numbers for the additional subscription TV drama
services for each month of operation during the shortfall year.
subscribers of first licensee means the sum
of the monthly subscriber numbers for the first subscription TV drama service
for each month of operation during the shortfall year.
Subdivision F—Part‑pass‑through provider supplies package of
programs
103X
10% minimum eligible drama expenditure—part‑pass‑through provider
supplies package of programs
(1) If:
(a) a licensee provides a subscription
TV drama service; and
(b) a person is a part‑pass‑through
provider in relation to the subscription TV drama service because the person
supplies a package of programs;
it is a condition of the licence that, for each financial
year of operation, the sum of:
(c) the licensee’s new eligible drama
expenditure in relation to the subscription TV drama service; and
(d) the licensee’s carry‑forward
eligible drama expenditure in relation to the subscription TV drama service;
equals or exceeds 10% of the licensee’s total program
expenditure in relation to the package of programs.
(2) In this section:
licensee’s carry‑forward eligible drama
expenditure, in relation to the subscription TV drama service, means
the licensee’s carry‑forward eligible drama expenditure (within the
meaning of subsection 103XA(2)) for the financial year.
licensee’s new eligible drama expenditure, in
relation to the subscription TV drama service, means the sum of:
(a) so much of the total expenditure
incurred by the licensee during the financial year on new eligible drama
programs as the licensee nominates for the purposes of the application of subsection (1)
in relation to the subscription TV drama service; and
(b) so much of the total expenditure
incurred by the part‑pass‑through provider during the financial
year on new eligible drama programs as the licensee nominates for the purposes
of the application of subsection (1) in relation to the subscription TV
drama service.
licensee’s total program expenditure, in
relation to the package of programs, means the total expenditure incurred by
the licensee during the financial year in respect of the supply by the part‑pass‑through
provider of the package of programs.
(2A) The licensee is not entitled to nominate,
under the definition of licensee’s new eligible drama expenditure
in subsection (2), so much of the designated script development
expenditure incurred by the licensee and/or the part‑pass‑through
provider during the financial year as exceeds 10% of the licensee’s new
eligible drama expenditure in relation to the subscription TV drama service.
(3) If:
(a) the licensee nominates the whole
or a part of particular expenditure under paragraph (a) of the definition
of licensee’s new eligible drama expenditure in subsection (2);
and
(b) the whole or part, as the case may
be, of the expenditure is attributable to a new eligible drama program on which
expenditure was incurred by the part‑pass‑through provider;
that new eligible drama program is to be disregarded in
determining the expenditure that may be nominated by the licensee under paragraph (b)
of that definition.
(4) Division 3 of Part 10 (which
deals with breaches of conditions) does not apply to the condition set out in subsection (1).
Note: If the sum of the licensee’s new eligible
drama expenditure and the licensee’s carry‑forward eligible drama
expenditure is less than 10% of the licensee’s total program expenditure, the
shortfall will have to be made up in the next financial year—see section 103Y.
103XA
Carry‑forward eligible drama expenditure
(1) This section applies if:
(a) a licensee provides a subscription
TV drama service; and
(b) a person is a part‑pass‑through
provider in relation to the subscription TV drama service because the person
supplies a package of programs; and
(c) the licensee’s new eligible drama
expenditure (within the meaning of section 103X) in relation to the
subscription TV drama service for a financial year exceeds 10% of the
licensee’s total program expenditure (within the meaning of section 103X)
in relation to the package of programs for the financial year.
(2) For the purposes of section 103X,
the licensee’s carry‑forward eligible drama expenditure in
relation to the subscription TV drama service for the next following financial
year is so much of the excess expenditure as the licensee nominates for the
purposes of the application of this subsection in relation to the subscription
TV drama service.
(3) Paragraph (1)(c) does not apply to
so much of the licensee’s new eligible drama expenditure (within the meaning of
section 103X) in relation to the subscription TV drama service as was
incurred before 1 January 2006.
103Y
Shortfall of eligible drama expenditure—part‑pass‑through provider
supplies package of programs
(1) This section applies if:
(a) a licensee provides a subscription
TV drama service; and
(b) a person is a part‑pass‑through
provider in relation to the subscription TV drama service because the person
supplies a package of programs; and
(c) the sum of
(i) the licensee’s new
eligible drama expenditure (within the meaning of section 103X) in
relation to the subscription TV drama service for a particular financial year
(the shortfall year); and
(ii) the licensee’s carry‑forward
eligible drama expenditure (within the meaning of section 103X) in
relation to the subscription TV drama service for the shortfall year;
is less than 10% of the
licensee’s total program expenditure (within the meaning of section 103X)
in relation to the package of programs for the shortfall year.
Shortfall amount to be made up next financial year
(2) It is a condition of the licensee’s
licence that, for the next financial year (the make‑up year),
the licensee’s make‑up expenditure is equal to the shortfall amount.
Definitions
(3) In this section:
licensee’s make‑up expenditure, in
relation to the subscription TV drama service, means the sum of:
(a) so much of the total expenditure
incurred by the licensee during the make‑up year on new eligible drama
programs as the licensee nominates for the purposes of the application of subsection (2)
in relation to the subscription TV drama service; and
(b) so much of the total expenditure
incurred by the part‑pass‑through provider during the make‑up
year on new eligible drama programs as the licensee nominates for the purposes
of the application of subsection (2) in relation to the subscription TV
drama service.
shortfall amount means the amount by which
the sum of:
(a) the licensee’s new eligible drama
expenditure (within the meaning of section 103X) in relation to the
subscription TV drama service for the shortfall year; and
(b) the licensee’s carry‑forward
eligible drama expenditure (within the meaning of section 103X) in
relation to the subscription TV drama service for the shortfall year;
fell short of 10% of the licensee’s total program
expenditure (within the meaning of section 103X) in relation to the
package of programs for the shortfall year.
Double counting
(4) If:
(a) the licensee nominates the whole
or a part of particular expenditure under paragraph (a) of the definition
of licensee’s make‑up expenditure in subsection (3);
and
(b) the whole or part, as the case may
be, of the expenditure is attributable to a new eligible drama program on which
expenditure was incurred by the part‑pass‑through provider;
that new eligible drama program is to be disregarded in
determining the expenditure that may be nominated by the licensee under paragraph (b)
of that definition.
Subdivision G—Licensee supplies part of program material
103Z
10% minimum eligible drama expenditure—licensee supplies part of program
material
(1) If:
(a) a licensee provides a subscription
TV drama service; and
(b) some, but not all, of the program
material that is televised by the licensee on the subscription TV drama service
consists of program material included in a package of programs supplied to the
licensee by:
(i) a part‑channel
provider; or
(ii) a part‑pass‑through
provider;
in relation to the subscription
TV drama service; and
(c) the remainder of the program
material that is televised by the licensee on the subscription TV drama service
consists predominantly of drama programs;
it is a condition of the licence that, for each financial
year of operation, the sum of:
(d) the licensee’s new eligible drama
expenditure in relation to the subscription TV drama service; and
(e) the licensee’s carry‑forward
eligible drama expenditure in relation to the subscription TV drama service;
equals or exceeds 10% of the licensee’s total program
expenditure in relation to the subscription TV drama service.
(2) In this
section:
licensee’s carry‑forward eligible drama
expenditure, in relation to the subscription TV drama service, means
the licensee’s carry‑forward eligible drama expenditure (within the
meaning of subsection 103ZAA(2)) for the financial year.
licensee’s new
eligible drama expenditure, in relation to the subscription TV drama
service, means so much of the total expenditure incurred by the licensee during
the financial year on new eligible drama programs not included in that package
as the licensee nominates for the purposes of the application of subsection (1)
in relation to the subscription TV drama service.
licensee’s total program expenditure, in
relation to the subscription TV drama service, means the total expenditure
incurred by the licensee during the financial year on program material that is:
(a) not included in that package; and
(b) for televising, or available for
televising, by the licensee on the subscription TV drama service.
(3) The licensee is not entitled to nominate,
under the definition of licensee’s new eligible drama expenditure
in subsection (2), so much of the designated script development
expenditure incurred by the licensee during the financial year as exceeds 10%
of the licensee’s new eligible drama expenditure in relation to the
subscription TV drama service.
103ZAA
Carry‑forward eligible drama expenditure
(1) This section applies if:
(a) a licensee provides a subscription
TV drama service; and
(b) some, but not all, of the program
material that is televised by the licensee on the subscription TV drama service
consists of program material included in a package of programs supplied to the
licensee by:
(i) a part‑channel
provider; or
(ii) a part‑pass‑through
provider;
in relation to the subscription
TV drama service; and
(c) the remainder of the program
material that is televised by the licensee on the subscription TV drama service
consists predominantly of drama programs; and
(d) the licensee’s new eligible drama
expenditure (within the meaning of section 103Z) in relation to the
subscription TV drama service for a financial year exceeds 10% of the
licensee’s total program expenditure (within the meaning of section 103Z)
in relation to the subscription TV drama service for the financial year.
(2) For the purposes of section 103Z,
the licensee’s carry‑forward eligible drama expenditure in
relation to the subscription TV drama service for the next following financial
year is so much of the excess expenditure as the licensee nominates for the
purposes of the application of this subsection in relation to the subscription
TV drama service.
(3) Paragraph (1)(c) does not apply to
so much of the licensee’s new eligible drama expenditure (within the meaning of
section 103Z) in relation to the subscription TV drama service as was
incurred before 1 January 2006.
Subdivision H—Annual returns
103ZA
Licensee to lodge annual return
(1) A licensee who provides one or more
subscription TV drama services must, within 60 days after the end of each
financial year of operation, give to the ACMA:
(a) a return, in the approved form,
containing such information as is required by that form in relation to the
application of this Division in connection with those services; and
(b) a certificate by a registered
auditor, in the approved form, stating that, in the opinion of the auditor, the
return, in so far as it relates to expenditure incurred by the licensee, is
correct.
(2) A person is guilty of an offence if:
(a) the person is subject to a
requirement under subsection (1); and
(b) the person intentionally
contravenes that requirement.
Penalty: 1,000 penalty units.
(3) A reference in this section to an approved
form is a reference to a form approved, in writing, by the ACMA for the
purposes of the provision in which the expression appears.
103ZB
Channel provider and part‑channel provider to lodge annual return
(1) If a person is a channel provider or a
part‑channel provider in relation to one or more subscription TV drama
services provided by a licensee during a financial year, the person must,
within 60 days after the end of that financial year, give to the ACMA:
(a) a return, in the approved form,
containing such information as is required by that form in relation to the
application of this Division in connection with those services; and
(b) a certificate by a registered
auditor, in the approved form, stating that, in the opinion of the auditor, the
return is correct.
(2) A person is guilty of an offence if:
(a) the person is subject to a
requirement under subsection (1); and
(b) the
person intentionally contravenes that requirement.
Penalty: 1,000 penalty units.
(3) If:
(a) a person is a channel provider or
a part‑channel provider in relation to one or more subscription TV drama
services provided by a licensee during a financial year; and
(b) the person contravenes subsection (1)
in relation to the financial year;
the ACMA must inform the licensee, in writing, of that
contravention as soon as practicable after the ACMA becomes aware of that
contravention.
(4) A reference in this section to an approved
form is a reference to a form approved, in writing, by the ACMA for the
purposes of the provision in which the expression appears.
103ZC ACMA
may inquire into the correctness of an annual return
The ACMA may make whatever inquiries it
thinks necessary or desirable in order to determine whether a return given to
it under this Subdivision contains correct information.
103ZD
Nominations to be attached to annual returns
Licensee
(1) A nomination that:
(a) is made by a licensee; and
(b) relates to the application of a
provision of this Division in respect of a financial year;
must:
(c) be in writing; and
(d) accompany the return given by the
licensee under section 103ZA for that financial year.
Channel provider and part‑channel provider
(2) A nomination that:
(a) is made by a person who is a
channel provider or a part‑channel provider in relation to one or more subscription
TV drama services provided by a licensee during a financial year; and
(b) relates to the application of a
provision of this Division in respect of that financial year;
must:
(c) be in writing; and
(d) accompany the relevant return
given by the channel provider or the part‑channel provider, as the case
may be, under section 103ZB for that financial year.
Subdivision I—Compliance certificates
103ZE ACMA
to issue compliance certificate
Channel provider
(1) If:
(a) a licensee provides a subscription
TV drama service; and
(b) a person is a channel provider in
relation to the subscription TV drama service because the person supplies a
channel; and
(c) 60 days pass after the end of a
particular financial year of operation;
then, as soon as practicable, the ACMA must:
(d) give the licensee a written
certificate stating:
(i) whether the amount
worked out under subsection (1A) fell short of 10% of the channel
provider’s total program expenditure (within the meaning of section 103N)
in relation to the channel for the financial year; and
(ii) if so, that an amount
specified in the certificate is the amount of the shortfall; and
(e) give the channel provider a copy
of that certificate.
(1A) For the purposes of subparagraph (1)(d)(i),
the amount is the sum of:
(a) the channel provider’s new
eligible drama expenditure (within the meaning of section 103N) in
relation to the subscription TV drama service for the financial year; and
(b) the channel provider’s carry‑forward
eligible drama expenditure (within the meaning of section 103N) in
relation to the subscription TV drama service for the financial year.
Pass‑through provider
(2) If:
(a) a licensee provides a subscription
TV drama service; and
(b) a person is a pass‑through
provider in relation to the subscription TV drama service because the person
supplies a channel; and
(c) 60 days pass after the end of a
particular financial year of operation;
then, as soon as practicable, the ACMA must give the
licensee a written certificate stating:
(d) whether the sum of:
(i) the licensee’s new
eligible drama expenditure (within the meaning of section 103R) in
relation to the subscription TV drama service for the financial year; and
(ii) the licensee’s carry‑forward
eligible drama expenditure (within the meaning of section 103R) in
relation to the subscription TV drama service for the financial year;
fell short of 10% of the
licensee’s total program expenditure (within the meaning of section 103R)
in relation to the channel for the financial year; and
(e) if so, that an amount specified in
the certificate is the amount of the shortfall.
Part‑channel provider
(3) If:
(a) a licensee provides a subscription
TV drama service; and
(b) a person is a part‑channel
provider in relation to the subscription TV drama service because the person
supplies a package of programs; and
(c) 60 days pass after the end of a
particular financial year of operation;
then, as soon as practicable, the ACMA must:
(d) give the licensee a written
certificate stating:
(i) whether the amount
worked out under subsection (3A) fell short of 10% of the part‑channel
provider’s total program expenditure (within the meaning of section 103U)
in relation to the package of programs for the financial year; and
(ii) if so, that an amount
specified in the certificate is the amount of the shortfall; and
(e) give the part‑channel
provider a copy of that certificate.
(3A) For the purposes of subparagraph (3)(d)(i),
the amount is the sum of:
(a) the part‑channel provider’s
new eligible drama expenditure (within the meaning of section 103U) in
relation to the subscription TV drama service for the financial year; and
(b) the part‑channel provider’s
carry‑forward eligible drama expenditure (within the meaning of section 103U)
in relation to the subscription TV drama service for the financial year.
Part‑pass‑through provider
(4) If:
(a) a licensee provides a subscription
TV drama service; and
(b) a person is a part‑pass‑through
provider in relation to the subscription TV drama service because the person
supplies a package of programs; and
(c) 60 days pass after the end of a
particular financial year of operation;
then, as soon as practicable, the ACMA must give the
licensee a written certificate stating:
(d) whether the sum of:
(i) the licensee’s new
eligible drama expenditure (within the meaning of section 103X) in
relation to the subscription TV drama service for the financial year; and
(ii) the licensee’s carry‑forward
eligible drama expenditure (within the meaning of section 103X) in
relation to the subscription TV drama service for the financial year;
fell short of 10% of the
licensee’s total program expenditure (within the meaning of section 103X)
in relation to the package of programs for the financial year; and
(e) if so, that an amount specified in
the certificate is the amount of the shortfall.
Note: For the evidentiary effect of a compliance
certificate, see section 103ZF.
103ZF
Compliance certificate to be prima facie evidence
(1) A compliance certificate is, in
proceedings arising under this Act, prima facie evidence of the matters in the
certificate.
(2) The ACMA may certify that a document is a
copy of a compliance certificate.
(3) This section applies to the certified
copy as if it were the original.
Subdivision J—Miscellaneous
103ZG
Anti‑avoidance—transactions between persons not at arm’s length
(1) If:
(a) a person has incurred expenditure
in connection with a transaction where the parties to the transaction are not
dealing with each other at arm’s length in relation to the transaction; and
(b) apart from this section, the
expenditure is counted for the purposes of the application of this Division;
and
(c) the amount of the expenditure is
greater or less than is reasonable;
the ACMA may, by writing, determine that the amount of the
expenditure is taken, for the purposes of the application of this Division in
relation to the parties to the transaction, to be the amount that would have
been reasonable if the parties were dealing with each other at arm’s length.
(2) A determination under subsection (1)
has effect accordingly.
103ZH
Expenditure to be expressed in Australian currency
(1) For the purposes of this Division,
expenditure is to be expressed in Australian currency.
(2) For the purposes of this Division, if
expenditure is incurred otherwise than in Australian currency, the expenditure
is to be expressed in Australian currency at a rate equal to whichever of the
following is applicable:
(a) if the expenditure is incurred in
connection with a transaction and the parties to the transaction have agreed on
the exchange rate that is applicable to the expenditure—that exchange rate; or
(b) in any other case—the exchange
rate applicable at the time when the expenditure is incurred.
103ZJ
Review before 31 March 2003
(1) Before 31 March 2003, the Minister must cause to be conducted a review relating to Australian and New Zealand
content on subscription television broadcasting services.
(2) The Minister must cause to be prepared a
report of a review under subsection (1).
(3) The Minister must cause copies of a
report under this section to be laid before each House of the Parliament within
15 sitting days of that House after the completion of the preparation of the
report.
Division 6—Miscellaneous
113
Transfer of subscription television broadcasting licence
(1) Subject to subsection (2), a
subscription television broadcasting licensee may transfer the subscription
television broadcasting licence to another person.
(2) Licensee C must not transfer licence C
without the written approval of the Minister.
114
Surrender of subscription television broadcasting licence
A subscription television broadcasting
licensee may, by notice in writing given to the ACMA, surrender the licence.
115
Minister may protect the free availability of certain types of programs
(1) The Minister may, by notice published in
the Gazette, specify an event, or events of a kind, the televising of
which should, in the opinion of the Minister, be available free to the general
public.
(1A) The Minister may, by notice published in
the Gazette, amend a notice under subsection (1) to specify an
additional event, or events of a kind, the televising of which should, in the
opinion of the Minister, be available free to the public.
(1AA) Subject to subsection (2), an event
specified in a notice under subsection (1) is taken to be removed from the
notice 2,016 hours before the start of the event, unless the Minister publishes
in the Gazette before that time a declaration that the event continues
to be specified in the notice after that time.
(1AB) The Minister may publish a declaration under
subsection (1AA) only if the Minister is satisfied that at least one
commercial television broadcasting licensee or national broadcaster has not had
a reasonable opportunity to acquire the right to televise the event concerned.
(1B) Subject to subsections (1AA) and (2),
an event specified in a notice under subsection (1) is taken to be removed
from the notice 168 hours after the end of the event, unless the Minister
publishes in the Gazette before that time a declaration that the event
continues to be specified in the notice after that time.
(2) The Minister may, by notice published in
the Gazette, amend a notice under subsection (1) to remove an event
from the notice.
Note: The
following are examples of situations in which the Minister might exercise the
power to remove an event from a notice:
Example 1
The national broadcasters and commercial
television broadcasting licensees have had a real opportunity to acquire the
right to televise an event, but none of them has acquired the right within a
reasonable time. The Minister is of the opinion that removing the event from
the notice is likely to have the effect that the event will be televised to a
greater extent than if it remained on the notice.
Example 2
A commercial television broadcasting
licensee has acquired the right to televise an event, but has failed to
televise the event or has televised only an unreasonably small proportion of
the event. The Minister is of the opinion that removing that event, or another
event, from the notice is likely to have the effect that the removed event will
be televised to a greater extent than it would be if it remained on the notice.
(3) Notices and declarations under this
section are disallowable instruments for the purposes of section 46A of
the Acts Interpretation Act 1901.
116
Certain arrangements not to result in control or in persons being associates
(1) A person who is in a position to exercise
control of a satellite subscription television broadcasting licence is not
taken to be in a position to exercise control of another satellite subscription
television broadcasting licence only because of a provision of a contract,
arrangement or understanding under which all or any of the following things are
done:
(a) a subscriber management system is
provided for subscribing to either or both of the subscription television
broadcasting services being provided under those licences;
(b) the subscription television
broadcasting services being provided under those licences are marketed on a
joint basis;
(c) joint use is made of facilities
for:
(i) transmitting programs;
or
(ii) the operation of
disabling devices for restricting access to certain programs;
(d) such other things as are prescribed.
(2) Subsection (1) does not apply to a
contract, arrangement or understanding under which, or as a result of which, a
person who is in a position to exercise control of a satellite subscription
television broadcasting service comes to be in a position to exercise control
(whether directly or indirectly) of the selection or provision of a significant
proportion of the programs broadcast by another satellite subscription
television broadcasting licensee.
(3) For the purposes of Part 5, a person
who is in a position to exercise control of a commercial television
broadcasting licence is not an associate of another person who is in a position
to exercise control of another commercial television broadcasting licence only
because of an association between them in relation to their participation in a
venture that operates licence B.
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 Trade Practices 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 Trade Practices Act 1974.
116C
Interpretation
(1) In this
Part:
licensee A
means the holder of licence A.
licensee B
means the holder of licence B.
Part 8—Subscription broadcasting and narrowcasting class licences
117
Determination of class licences
The ACMA may, by notice published in the
Gazette, determine a class licence for the provision of:
(a) subscription radio broadcasting
services; or
(b) subscription radio narrowcasting
services; or
(c) subscription television
narrowcasting services; or
(d) open narrowcasting radio services;
or
(e) open narrowcasting television
services.
118
Conditions of class licences
(1) The ACMA may include in a class licence
conditions that, having regard to:
(a) the objects of this Act and the
regulatory policy set out in section 4; and
(b) the matters referred to in section 22;
it considers should be imposed on the provision of
services under that licence.
(2) Different conditions may be specified
for:
(a) different categories of
broadcasting services; and
(b) services providing radio programs
and services providing television programs.
(3) Each class licence is subject to the
conditions set out in Part 7 of Schedule 2.
119
Matters to which conditions may relate
(1) Conditions of class licences must be
relevant to the broadcasting services to which those licences relate.
(2) Without
limiting the range of conditions that may be imposed, the ACMA may impose a
condition on a class licence:
(a) requiring the licensee to comply
with a code of practice that is applicable to the licensee; or
(b) designed to ensure that a breach
of a condition by the licensee does not recur; or
(c) designed to ensure compliance with
the film classification system provided for by the Classification
(Publications, Films and Computer Games) Act 1995.
120
Variation of class licences
(1) The ACMA may, by notice published in the Gazette:
(a) vary or revoke conditions
specified in a class licence; or
(b) specify additional conditions of
the licence.
(2) Action taken under subsection (1)
must not be inconsistent with:
(a) determinations and clarifications
under section 19; or
(b) conditions set out in Part 7
of Schedule 2.
(3) Before publishing a notice under subsection (1),
the ACMA must:
(a) publicise its intention to vary
the licence, stating:
(i) the subject matter of
the proposed variation; and
(ii) a place at which
copies of the licence and of the proposed variation may be bought; and
(iii) an address to which
representations concerning the proposed variation can be sent; and
(iv) the last date for
making those representations; and
(b) give due consideration to any
representations so made.
121
Class licences and variations to be disallowable by the Parliament
Class licences, and instruments varying
class licences, are disallowable instruments for the purposes of section 46A
of the Acts Interpretation Act 1901.
Part 8A—Restrictions on subscription television broadcasting
services in regional areas etc.
121A
Simplified outline
The following is a simplified outline of
this Part:
• Unless the ACMA gives
permission, a subscription television broadcasting licensee, or a related body
corporate, must not provide a television service in a regional area if 3 or
more consecutive program items transmitted on that service are identical to any
3 or more consecutive program items transmitted by a metropolitan commercial
television broadcasting licensee during prime viewing hours.
121B
Definitions
In this Part:
licence area means a licence area of a
commercial television broadcasting licence.
metropolitan commercial television broadcasting
licensee means a commercial television broadcasting licensee whose
licence area is a metropolitan licence area.
metropolitan licence area means a licence
area in which is situated the General Post Office of the capital city of:
(a) New South Wales; or
(b) Victoria; or
(c) Queensland; or
(d) Western Australia; or
(e) South Australia.
prime viewing hours means
the hours:
(a) beginning at 6 pm each day or, if another time is prescribed, beginning at that prescribed time each day; and
(b) ending at 10.30 pm on the same day or, if another time is prescribed, ending at that prescribed time on the
same day.
program item means a television
program, but does not include:
(a) advertising or sponsorship matter
(whether or not of a commercial kind); or
(b) a news program that:
(i) is not a regularly
scheduled news program; and
(ii) is solely or
principally about a matter of national significance; or
(c) a program that covers an Olympic
Games that is being held at the time the program is transmitted; or
(d) a program that covers a Paralympic
Games that is being held at the time the program is transmitted; or
(e) a program that covers a Commonwealth
Games that is being held at the time the program is transmitted.
regional area means an area that is not part
of a metropolitan licence area.
related body corporate has the same meaning
as in the Corporations Act 2001.
121C
Identical program items
For the purposes of this Part, in
determining whether a program item is identical to another program item,
disregard any differences between the techniques used to transmit the program
items.
121D
Continuity of program items
(1) For the purposes of this Part, any break
during the transmission of a program item for the purposes of the transmission
of other matter:
(a) is taken not to affect the
continuity of the program item; and
(b) is to be counted in working out
the length of the program item; and
(c) despite paragraph (b), is to
be ignored in working out whether the program item is identical to another
program item.
(2) For the purposes of this Part, any break
between program items for the purposes of the transmission of other matter:
(a) is taken not to affect the
consecutiveness of the program items; and
(b) is to be counted in working out
the total length of the program items.
121E ACMA
permission is required to provide certain television services in regional areas
(1) A subscription television broadcasting
licensee, or a related body corporate of a subscription television broadcasting
licensee, engages in conduct to which this subsection applies if,
without the written permission of the ACMA, the subscription television
broadcasting licensee or the related body corporate, as the case may be,
provides:
(a) a subscription television
broadcasting service; or
(b) a subscription television
narrowcasting service; or
(c) an open narrowcasting television
service;
in a regional area, where, to the knowledge of the
subscription television broadcasting licensee or the related body corporate, as
the case may be, 3 or more consecutive program items transmitted on that
service during a particular period:
(d) the total length of which is the
same as, or shorter than, the length of prime viewing hours; and
(e) that occurs within the 24 hour
period beginning at the start of prime viewing hours;
are identical to any 3 or more consecutive program items
transmitted by a metropolitan commercial television broadcasting licensee
during those prime viewing hours.
(2) A subscription television broadcasting
licensee, or a related body corporate of a subscription television broadcasting
licensee, must take all reasonable steps to ensure that the subscription
television broadcasting licensee or the related body corporate, as the case may
be, does not engage in conduct to which subsection (1) applies.
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.
• 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.
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 a
company that is formed in Australia or in an external Territory; 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.
(2) If the ACMA:
(a) is not satisfied that an applicant
under subsection 121FA(1) for an international broadcasting licence is a
company that is formed in Australia or in an external Territory; 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.
(6) If the ACMA:
(a) is not satisfied that an applicant
under subsection 121FA(1A) for an international broadcasting licence is a
company; or
(b) decides that subsection 121FC(1)
applies to an applicant under subsection 121FA(1A) for an international
broadcasting licence;
the ACMA must refuse to allocate an international
broadcasting licence to the applicant.
(7) If, under subsection (6), the ACMA
refuses to allocate an international broadcasting licence to an applicant, the ACMA
must give written notice of the refusal to:
(a) the applicant; and
(b) the holder of the nominated
broadcaster declaration concerned.
(8) If an application for an international
broadcasting licence is made under subsection 121FA(1A), the ACMA must make
reasonable efforts to either:
(a) take action under subsection (5)
of this section; or
(b) refuse to allocate the licence;
within 30 days after the application was made.
121FC
Unsuitable applicant
(1) The ACMA may, if it is satisfied that
allowing a particular company to provide an international broadcasting service
under an international broadcasting licence would lead to a significant risk
of:
(a) an offence against this Act or the
regulations being committed; or
(aa) a breach of a civil penalty
provision occurring; or
(b) a breach of the conditions of the
licence occurring;
decide that this subsection applies to the company.
(2) In deciding whether such a risk exists,
the ACMA is to take into account:
(a) the business record of the
company; and
(b) the company’s record in situations
requiring trust and candour; and
(c) the business record of each person
who is, or would be, if an international broadcasting licence were allocated to
the company, in a position to control the licence; and
(d) the record in situations requiring
trust and candour of each such person; and
(e) whether the company, or a person
referred to in paragraph (c) or (d), has been convicted of an offence
against this Act or the regulations; and
(f) whether a civil penalty order has
been made against:
(i) the company; or
(ii) a person referred to
in paragraph (c) or (d).
121FD Australia’s
national interest
Direction not to allocate licence
(1) If:
(a) an application for an
international broadcasting licence is referred to the Minister for Foreign
Affairs under subsection 121FB(1) or (5); and
(b) the Minister for Foreign Affairs
is of the opinion that the proposed international broadcasting service
concerned is likely to be contrary to Australia’s national interest;
the Minister for Foreign Affairs may, by written notice
given to the ACMA, direct the ACMA not to allocate an international
broadcasting licence to the applicant.
No objection to allocation of licence
(2) If:
(a) an application for an
international broadcasting licence is referred to the Minister for Foreign
Affairs under subsection 121FB(1) or (5); and
(b) the Minister for Foreign Affairs
is not of the opinion that the proposed international broadcasting service
concerned is likely to be contrary to Australia’s national interest;
the Minister for Foreign Affairs must, by written notice
given to the ACMA, inform the ACMA that he or she has no objection to the
allocation of an international broadcasting licence to the applicant.
Australia’s national interest
(3) For the purposes of this section, in
determining whether a proposed international broadcasting service is likely to
be contrary to Australia’s national interest, the Minister for Foreign Affairs
must have regard to the likely effect of the proposed service on Australia’s
international relations.
(4) For the purposes of this section, in
determining whether a proposed international broadcasting service is likely to
be contrary to Australia’s national interest, the Minister for Foreign Affairs
may have regard to a report given by the ACMA under subsection 121FB(1) or (5).
This subsection does not limit the material to which the Minister for Foreign
Affairs may have regard.
Decision to be made within 60 days
(5) If an application for an international
broadcasting licence is referred to the Minister for Foreign Affairs under
subsection 121FB(1) or (5), the Minister for Foreign Affairs must make
reasonable efforts to either:
(a) direct the ACMA under subsection (1)
of this section; or
(b) inform the ACMA under subsection (2)
of this section;
within 60 days after the referral.
Notification
(6) If the Minister for Foreign Affairs
directs the ACMA not to allocate an international broadcasting licence to an
applicant, the ACMA must give written notice of the direction to:
(a) in all cases—the applicant; and
(b) in the case of an application
under subsection 121FA(1A)—the holder of the nominated broadcaster declaration
concerned.
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.
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.
Division 4—Remedies
121FG
Prohibition on providing an international broadcasting service without a
licence
(1) A person is
guilty of an offence if the person:
(a) intentionally provides an
international broadcasting service; and
(b) does not have an international
broadcasting licence to provide the service, and is reckless as to that fact.
Penalty: 20,000 penalty units.
(2) A person who contravenes subsection (1)
is guilty of a separate offence in respect of each day (including a day of a
conviction for the offence or any later day) during which the contravention
continues.
(3) A person must not provide an
international broadcasting service if the person does not have a licence to
provide that service.
(4) Subsection (3) is a civil penalty
provision.
(5) A person who contravenes subsection (3)
commits a separate contravention of that subsection in respect of each day
(including a day of the making of a relevant civil penalty order or any
subsequent day) during which the contravention continues.
121FH
Remedial directions—unlicensed international broadcasting services
If the ACMA is satisfied that a person
has breached, or is breaching, subsection 121FG(3), the ACMA may, by written
notice given to the person, direct the person to take action directed towards
ensuring that the person does not breach that section, or is unlikely to breach
that section, in the future.
121FHA
Breach of remedial direction—offence
(1) A person commits an offence if:
(a) the person has been given a notice
under section 121FH; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a
requirement in the notice.
Penalty: 20,000 penalty units.
(2) A person who contravenes subsection (1)
commits a separate offence in respect of each day (including a day of a
conviction for the offence or any later day) during which the contravention
continues.
(3) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
121FHB
Breach of remedial direction—civil penalty provision
(1) A person must comply with a notice under
section 121FH.
(2) Subsection (1) is a civil penalty
provision.
(3) A person who contravenes subsection (1)
commits a separate contravention of that subsection in respect of each day
(including a day of the making of a relevant civil penalty order or any
subsequent day) during which the contravention continues.
121FJ
Offence for breach of conditions of international broadcasting licence
(1) A person is guilty of an offence if:
(a) the person is an international
broadcasting licensee; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches a
condition of the licence.
Penalty: 2,000 penalty units.
(2) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
121FJA
Civil penalty provision relating to breach of conditions of international
broadcasting licences
(1) An international broadcasting licensee
must not breach a condition of the licence.
(2) Subsection (1) is a civil penalty
provision.
(3) A person who contravenes subsection (1)
commits a separate contravention of that subsection in respect of each day
(including a day of the making of a relevant civil penalty order or any
subsequent day) during which the contravention continues.
121FJB
Remedial directions—licence conditions
(1) If the ACMA is satisfied that an
international broadcasting licensee has breached, or is breaching, a condition
of the licence, the ACMA may, by written notice given to the licensee, direct
the licensee to take action directed towards ensuring that the licensee does
not breach that condition, or is unlikely to breach that condition, in the
future.
(2) The
following are examples of the kinds of direction that may be given to a
licensee under subsection (1):
(a) a direction that the licensee
implement effective administrative systems for monitoring compliance with a
condition of the licence;
(b) a direction that the licensee
implement a system designed to give the licensee’s employees, agents and
contractors a reasonable knowledge and understanding of the requirements of a
condition of the licence, in so far as those requirements affect the employees,
agents or contractors concerned.
121FJC
Breach of remedial direction—offence
(1) A person commits an offence if:
(a) the person has been given a notice
under section 121FJB; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a
requirement in the notice.
Penalty: 2,000 penalty units.
(2) A person who contravenes subsection (1)
commits a separate offence in respect of each day (including a day of a
conviction for the offence or any later day) during which the contravention
continues.
(3) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
121FJD
Breach of remedial direction—civil penalty provision
(1) A person must comply with a notice under
section 121FJB.
(2) Subsection (1) is a civil penalty
provision.
(3) A person who contravenes subsection (1)
commits a separate contravention of that subsection in respect of each day
(including a day of the making of a relevant civil penalty order or any
subsequent day) during which the contravention continues.
121FK
Cancellation of licence if service does not commence within 2 years
(1) If:
(a) a person has been allocated an
international broadcasting licence; and
(b) the person has not commenced to
provide the international broadcasting service concerned within 2 years after
the allocation of the licence;
the ACMA may cancel the licence.
Notice of intention to cancel
(2) If the ACMA proposes to cancel a licence
under subsection (1), the ACMA must give to the licensee:
(a) written notice of its intention;
and
(b) a reasonable opportunity to make
representations to the ACMA in relation to the proposed cancellation.
121FL
Formal warning, or cancellation or suspension of licence, where service is
contrary to Australia’s national interest
Formal warning
(1) If:
(a) an international broadcasting
service is provided under an international broadcasting licence; and
(b) the Minister for Foreign Affairs
is of the opinion that the service is contrary to Australia’s national
interest; and
(c) the Minister for Foreign Affairs,
by written notice given to the ACMA, directs the ACMA to issue a formal warning
to the licensee;
the ACMA must issue a formal warning to the licensee.
Suspension of licence
(3) If:
(a) an international broadcasting
service is provided under an international broadcasting licence; and
(b) the Minister for Foreign Affairs
is of the opinion that the service is contrary to Australia’s national
interest; and
(c) the Minister for Foreign Affairs,
by written notice given to the ACMA, directs the ACMA to suspend the licence
for the period specified in the direction;
the ACMA must suspend the licence for the period specified
in the direction.
Cancellation of licence
(5) If:
(a) an international broadcasting
service is provided under an international broadcasting licence; and
(b) the Minister for Foreign Affairs
is of the opinion that the service is contrary to Australia’s national
interest; and
(c) the Minister for Foreign Affairs,
by written notice given to the ACMA, directs the ACMA to cancel the licence;
the ACMA must cancel the licence.
(6) If the Minister for Foreign Affairs
proposes to direct the ACMA to cancel an international broadcasting licence, he
or she must direct the ACMA to:
(a) give the licensee written notice
of his or her intention; and
(b) give the licensee a reasonable
opportunity to send a submission to the ACMA in relation to the proposed
direction; and
(c) forward any such submission to the
Minister for Foreign Affairs.
Australia’s national interest
(8) For the purposes of this section, in
determining whether an international broadcasting service is contrary to Australia’s
national interest, the Minister for Foreign Affairs must have regard to the
effect of the service on Australia’s international relations.
(9) For the purposes of this section, in
determining whether an international broadcasting service is contrary to Australia’s
national interest, the Minister for Foreign Affairs may have regard to a report
given by the ACMA under section 121FM. This subsection does not limit the
material to which the Minister for Foreign Affairs may have regard.
Division 4A—Nominated broadcaster declarations
121FLA
Object of this Division
The main object of this Division is to
provide for the making of declarations (nominated broadcaster
declarations) that allow the following licences to be held by different
persons:
(a) an international broadcasting
licence that authorises the provision of an international broadcasting service;
(b) a transmitter licence for a
radiocommunications transmitter that is for use for transmitting the
international broadcasting service.
121FLB
Applications for nominated broadcaster declarations
If a person (the transmission
provider):
(a) is the licensee of a transmitter
licence for a transmitter that is used, or intended for use, for transmitting
an international broadcasting service; or
(b) proposes to apply for a
transmitter licence for a transmitter that is intended for use for transmitting
an international broadcasting service;
the transmission provider may apply to the ACMA for a
nominated broadcaster declaration in relation to the provision of the
international broadcasting service by a particular person (the content
provider).
121FLC
Making a nominated broadcaster declaration
(1) After considering the application, the ACMA
must declare in writing that the provision of the international broadcasting
service by the content provider is nominated in relation to the transmitter
licence or proposed transmitter licence, if the ACMA is satisfied that:
(a) either:
(i) the content provider
holds an international broadcasting licence that authorises the provision of
the international broadcasting service; or
(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 a
company that is formed in Australia or in an external Territory; and
(d) if the declaration were made, the
transmission provider would be in a position to comply with all of the
obligations imposed on the transmission provider under section 121FLE.
(2) The ACMA must give a copy of the
declaration to:
(a) the transmission provider; and
(b) the content provider.
(3) If the ACMA refuses to make a nominated
broadcaster declaration, the ACMA must give written notice of the refusal to:
(a) the transmission provider; and
(b) the content provider.
(4) If an application is made for a nominated
broadcaster declaration, the ACMA must make reasonable efforts to:
(a) make the declaration under subsection (1);
or
(b) refuse to make the declaration;
within 30 days after the application is made.
(5) This Part does not prevent the ACMA from
making more than one nominated broadcaster declaration in relation to a
particular international broadcasting service, so long as each declaration
relates to a different transmitter licence or proposed transmitter licence.
121FLD
Effect of nominated broadcaster declaration
If:
(a) a
nominated broadcaster declaration is in force in relation to an international
broadcasting service; and
(b) the
provision of the international broadcasting service is authorised by an
international broadcasting licence; and
(c) the holder of the declaration is
the licensee of a transmitter licence that authorises the operation of a
transmitter for transmitting the international broadcasting service; and
(d) the licensee of the transmitter
licence transmits the international broadcasting service on behalf of the
licensee of the international broadcasting licence;
then:
(e) for the purposes of the Radiocommunications
Act 1992, the licensee of the international broadcasting licence is taken
not to operate the radiocommunications transmitter for any purpose in
connection with that transmission; and
(f) for the purposes of this Act:
(i) the licensee of the
international broadcasting licence is taken to provide the international
broadcasting service; and
(ii) the licensee of the
transmitter licence is taken not to provide the international broadcasting
service; and
(g) for the purposes of this Act, any
programs that are transmitted by the licensee of the transmitter licence on
behalf of the licensee of the international broadcasting licence:
(i) are taken to be
programs transmitted by the licensee of the international broadcasting licence;
and
(ii) are not taken to be
programs transmitted by the licensee of the transmitter licence; and
(h) for the purposes of this Part
(other than section 121FLG), the ACMA is taken to have given a written
notice to the licensee of the international broadcasting licence if the ACMA
gives the notice to the licensee of the transmitter licence.
121FLE
Conditions of nominated broadcaster declarations
(1) Each nominated broadcaster declaration is
subject to the following conditions:
(a) the holder of the declaration must
cause a record of programs broadcast on the international broadcasting service
concerned to be made in a form approved in writing by the ACMA;
(b) the holder of the declaration must
retain in the holder’s custody a record so made for a period of 90 days after
the broadcast;
(c) the holder of the declaration
must, without charge, make available to the ACMA, on request, any specified
record made by the holder under paragraph (a) that has been retained by
the holder (whether or not the holder is, at the time of the request, under an
obligation to retain the record).
(2) Subsection (1) does not apply to a
nominated broadcaster declaration unless the holder of the declaration is the
licensee of a transmitter licence that authorises the operation of a
transmitter for transmitting the international broadcasting service concerned.
121FLF
Offence for breach of conditions of nominated broadcaster declaration
(1) A person is guilty of an offence if:
(a) the person is the holder of a
nominated broadcaster declaration; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches a
condition of the declaration.
Penalty: 2,000 penalty units.
(2) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
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 a company that is formed in Australia or in an external Territory.
(2) The ACMA must, by writing, revoke a
nominated broadcaster declaration relating to the provision of an international
broadcasting service by a person (the content provider) if the ACMA
is satisfied that:
(a) at the time the declaration was
made, there was no international broadcasting licence that authorised the
provision of the international broadcasting service by the content provider;
and
(b) either:
(i) no application was
made under subsection 121FA(1A) for such a licence within 60 days after the
making of the declaration; or
(ii) an application for
such a licence was made under subsection 121FA(1A) within 60 days after the
making of the declaration, but the application was refused.
(3) The ACMA must, by writing, revoke a
nominated broadcaster declaration relating to the provision of an international
broadcasting service by a person (the content provider) if:
(a) the holder of the declaration; or
(b) the content provider;
gives the ACMA a written notice stating that the holder of
the declaration, or the content provider, does not consent to the continued
operation of the declaration.
(4) The ACMA must give a copy of the
revocation to:
(a) the person who held the
declaration; and
(b) the content provider.
(5) A revocation under subsection (1),
(2) or (3) takes effect on the date specified in the revocation.
(6) The ACMA must not revoke a nominated
broadcaster declaration under subsection (1) or (2) unless the ACMA has
first:
(a) given the holder of the
declaration a written notice:
(i) setting out a proposal
to revoke the declaration; and
(ii) inviting the holder of
the declaration to make a submission to the ACMA on the proposal; and
(b) given the content provider a
written notice:
(i) setting out a proposal
to revoke the declaration; and
(ii) inviting the content
provider to make a submission to the ACMA on the proposal; and
(c) considered any submission that was
received under paragraph (a) or (b) within the time limit specified in the
notice concerned.
(7) A time limit specified in a notice under subsection (6)
must run for at least 7 days.
(8) A person must not enter into a contract
or arrangement under which the person or another person is:
(a) prevented from giving a notice
under subsection (3); or
(b) subject to any restriction in
relation to the giving of a notice under subsection (3).
(9) A contract or arrangement entered into in
contravention of subsection (8) is void.
121FLH
Cancellation of licence if declaration ceases to be in force and licensee is
not an Australian company
(1) If:
(a) a nominated broadcaster
declaration ceases to be in force; and
(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 a company that is formed in Australia or in an
external Territory; 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 formed
in Australia or in an external Territory;
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 a company that is
formed in Australia or in an external Territory;
the ACMA must cancel the licence.
(3) The ACMA may, by written notice given to
the licensee, determine that paragraph (2)(c) has effect, in relation to
the licensee, as if a reference in that paragraph to 90 days were a reference
to such greater number of days as is specified in the notice.
(4) The ACMA must not notify a greater number
of days under subsection (3) unless it is satisfied that there are
exceptional circumstances that warrant the greater number of days.
Notice of intention to cancel
(5) If the ACMA proposes to cancel a licence
under subsection (1) or (2), the ACMA must give to the licensee:
(a) written notice of its intention;
and
(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.
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.
Division 6—Miscellaneous
121FP
International broadcasting guidelines
(1) The ACMA must formulate written
guidelines relating to international broadcasting services.
(2) To avoid doubt, international
broadcasting guidelines may deal with matters other than Australia’s national
interest.
(3) International broadcasting guidelines are
disallowable instruments for the purposes of section 46A of the Acts
Interpretation Act 1901.
121FQ
Surrender of international broadcasting licences
(1) An international broadcasting licensee
may, by notice in writing given to the ACMA, surrender the licence.
121FR
Complaints about international broadcasting services
(1) It is not a function of the ACMA to
monitor and investigate complaints concerning international broadcasting
services.
(2) However, if an international broadcasting
service also falls into another category of broadcasting services, this section
does not prevent the ACMA from performing its function of monitoring and
investigating complaints about the service in the service’s capacity as a
service that falls into that other category.
121FS
Statements about decisions of the Minister for Foreign Affairs
(1) If:
(a) the Minister for Foreign Affairs
makes a decision under subsection 121FD(1) or 121FL(3) or (5); and
(b) a person is entitled to make an
application to the Federal Court or the Federal Magistrates Court under section 5
of the Administrative Decisions (Judicial Review) Act 1977 in relation
to the decision;
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.
Part 9—Program standards
122
Program standards for children’s programs and Australian content
(1) The ACMA must, by notice in writing,
determine standards that are to be observed by commercial television
broadcasting licensees.
(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.
(5) 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 9
of the Broadcasting Services (Australian Content) Standard 1999 as in
force on 4 August 2004.
Note: Section 9 of the Broadcasting Services
(Australian Content) Standard 1999 deals with quotas for Australian
television programs.
(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) If:
(a) there is a simulcast period, or a
simulcast‑equivalent period, for the licence area of a commercial
television broadcasting licence; and
(b) during that period, the licensee
provides a core commercial television broadcasting service in the licence area;
then, during that period, standards under subsection (1),
in so far as they relate to programs for children, do not apply to a commercial
television broadcasting service provided by the licensee unless that service is
the core commercial television broadcasting service.
(8) If:
(a) there is a simulcast period, or a
simulcast‑equivalent period, for the licence area of a commercial
television broadcasting licence; and
(b) during that period, the licensee
provides a core commercial television broadcasting service in the licence area;
then, during that period, standards under subsection (1),
in so far as they relate to Australian content of programs, do not apply to a
commercial television broadcasting service provided by the licensee unless that
service is the core commercial television broadcasting service.
(9) If a commercial television broadcasting
licence is allocated under section 36 or subsection 40(1) on or after 1 January 2007, standards under subsection (1) do not apply to the licensee
during the first 5 years of operation.
(10) In this section:
simulcast period has the same meaning as in
Schedule 4.
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
(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
(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
preference, 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:
(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
(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.
(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.
(7) To avoid doubt, a reference in this
section to broadcasting operations includes a reference to each
community radio broadcasting service provided by a designated community radio
broadcasting licensee.
123A
Review by the ACMA
(1) The ACMA must periodically conduct a
review of the operation of subsections 123(3A) and (3C) to see whether those
subsections are in accordance with prevailing community standards.
(2) If, after conducting such a review, the ACMA
concludes that subsection 123(3A) or (3C) is not in accordance with prevailing
community standards, the ACMA must recommend to the Minister appropriate
amendments to this Act that would ensure that subsection 123(3A) or (3C), as
the case requires, is in accordance with prevailing community standards.
(3) If the Minister receives a recommendation
under subsection (2), the Minister must cause a copy of the recommendation
to be tabled in each House of the Parliament within 15 sitting days of that
House after receiving the recommendation.
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.
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.
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 Trade Practices 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 Trade Practices Act 1974.
Part 9A—Technical standards
130A
Technical standards for digital transmission—television etc.
(1) The ACMA may, by legislative instrument,
determine technical standards that relate to the transmission in digital mode
of any or all of the following services delivered using the broadcasting
services bands:
(a) commercial television broadcasting
services;
(b) national television broadcasting
services;
(c) community television broadcasting
services;
(d) subscription television
broadcasting services;
(e) subscription television
narrowcasting services provided under a class licence;
(ea) open narrowcasting television
services provided under a class licence;
(f) datacasting services (other than
restricted datacasting services) provided under datacasting licences.
Conditional access systems
(2) Standards under subsection (1), to
the extent that they deal with conditional access systems, must be directed
towards ensuring the achievement of the policy objective that, as far as is
practicable, those systems should be open to all providers of eligible
datacasting services.
Application program interfaces
(3) Standards under subsection (1), to
the extent that they deal with application program interfaces, must be directed
towards ensuring the achievement of the policy objective that, as far as is
practicable, those interfaces should be open to all providers of eligible
datacasting services.
Conversion schemes
(4) The commercial television conversion
scheme under clause 6 of Schedule 4 must be consistent with any
standards determined under subsection (1).
(5) The national television conversion scheme
under clause 19 of Schedule 4 must be consistent with any standards
determined under subsection (1).
Instruments
(6) Section 589 of the Telecommunications
Act 1997 applies to standards determined under subsection (1) of this
section in a corresponding way to the way in which it applies to an instrument
under that Act.
Compliance
(7) A national broadcaster must comply with a
standard determined under subsection (1).
Note 1: For compliance by holders of commercial
television broadcasting licences, see clause 7 of Schedule 2.
Note 2: For compliance by holders of community
television broadcasting licences, see clause 9 of Schedule 2.
Note 3: For compliance by holders of subscription
television broadcasting licences, see clause 10 of Schedule 2.
Note 4: For compliance by providers of television
broadcasting services provided under a class licence, see clause 11 of
Schedule 2.
Note 5: For compliance by holders of datacasting
licences, see clause 24 of Schedule 6.
Note 6: For compliance by holders of datacasting
transmitter licences, see section 109A of the Radiocommunications Act
1992.
Definitions
(8) In this
section:
application program interface has the meaning
generally accepted within the broadcasting industry.
conditional access system means a conditional
access system that:
(a) relates to the provision of one or
more eligible datacasting services; and
(b) allows a provider of an eligible
datacasting service to determine whether an end‑user is able to receive a
particular eligible datacasting service.
digital mode has the same meaning as in
Schedule 4.
eligible datacasting service means:
(a) a datacasting service provided
under, and in accordance with the conditions of, a datacasting licence; or
(b) a television broadcasting service
transmitted in digital mode using the broadcasting services bands.
national television broadcasting service has
the same meaning as in Schedule 4.
130AA
Technical standards for digital transmission—radio etc.
(1) The ACMA may, by legislative instrument,
determine technical standards that relate to the transmission of any or all of
the following services using a digital modulation technique:
(a) commercial radio broadcasting
services;
(b) national radio broadcasting
services;
(c) community radio broadcasting
services;
(d) subscription radio broadcasting
services provided under a class licence;
(e) subscription radio narrowcasting
services provided under a class licence;
(f) open narrowcasting radio services
provided under a class licence;
(g) restricted datacasting services
provided under restricted datacasting licences.
Instruments
(2) Section 589 of the Telecommunications
Act 1997 applies to standards determined under subsection (1) of this
section in a corresponding way to the way in which it applies to an instrument
under that Act.
Compliance
(3) A national broadcaster must comply with a
standard determined under subsection (1).
Note 1: For compliance by holders of commercial radio
broadcasting licences, see clause 8 of Schedule 2.
Note 2: For compliance by holders of community radio
broadcasting licences, see clause 9 of Schedule 2.
Note 3: For compliance by providers of radio
broadcasting services provided under a class licence, see clause 11 of
Schedule 2.
Note 4: For compliance by holders of restricted
datacasting licences, see clause 24A of Schedule 6.
130AB
Technical standards relating to the operation of multiplex transmitters
(1) The ACMA may, by legislative instrument,
determine technical standards that relate to the operation of multiplex
transmitters under digital radio multiplex transmitter licences.
Note: For compliance, see paragraph 109B(1)(o) of
the Radiocommunications Act 1992.
Instruments
(2) Section 589 of the Telecommunications
Act 1997 applies to standards determined under subsection (1) of this
section in a corresponding way to the way in which it applies to an instrument
under that Act.
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
(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.
Instruments
(5) Section 589 of the Telecommunications
Act 1997 applies to standards determined under subsection (1) of this
section in a corresponding way to the way in which it applies to an instrument
under that Act.
Reception of subscription television broadcasting
services
(6) For the purposes of this section, it is
immaterial whether domestic reception equipment is capable of receiving
subscription television broadcasting services when used:
(a) in isolation; or
(b) in conjunction with any other
equipment.
Exemptions
(7) The ACMA may, by legislative instrument,
exempt specified domestic reception equipment from subsections (2) and
(3).
Note: For specification by class, see subsection
13(3) of the Legislative Instruments Act 2003.
Definitions
(8) In this
section:
digital mode has the same meaning as in
Schedule 4.
national television broadcasting service has
the same meaning as in Schedule 4.
supply has the same meaning as in the Trade
Practices Act 1974.
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 capable of receiving any or all of the following services transmitted using
a digital modulation technique:
(a) commercial radio broadcasting
services;
(b) national
radio broadcasting services;
(c) community radio broadcasting
services;
(d) subscription radio broadcasting
services provided under a class licence;
(e) subscription radio narrowcasting
services provided under a class licence;
(f) open narrowcasting radio services
provided under a class licence;
(g) restricted datacasting services
provided under restricted datacasting licences.
Offence
(2) A person commits an offence if:
(a) the person supplies equipment; and
(b) the equipment is domestic
reception equipment; and
(c) the equipment is capable of
receiving any or all of the following services transmitted using a digital
modulation technique:
(i) commercial radio
broadcasting services;
(ii) national radio
broadcasting services;
(iii) community radio
broadcasting services;
(iv) subscription radio
broadcasting services provided under a class licence;
(v) subscription radio
narrowcasting services provided under a class licence;
(vi) open narrowcasting
radio services provided under a class licence;
(vii) restricted datacasting
services provided under restricted datacasting licences; and
(d) the equipment does not comply with
a standard determined under subsection (1).
Penalty: 1,500 penalty units.
Civil penalty
(3) A person
must not supply domestic reception equipment if:
(a) the equipment is capable of
receiving any or all of the following services transmitted using a digital
modulation technique:
(i) commercial radio
broadcasting services;
(ii) national radio
broadcasting services;
(iii) community radio
broadcasting services;
(iv) subscription radio
broadcasting services provided under a class licence;
(v) subscription radio
narrowcasting services provided under a class licence;
(vi) open narrowcasting
radio services provided under a class licence;
(vii) restricted datacasting
services provided under restricted datacasting licences; and
(b) the equipment does not comply with
a standard determined under subsection (1).
(4) Subsection (3) is a civil penalty
provision.
Instruments
(5) Section 589 of the Telecommunications
Act 1997 applies to standards determined under subsection (1) of this
section in a corresponding way to the way in which it applies to an instrument
under that Act.
Reception of subscription radio broadcasting services
(6) For the purposes of this section, it is
immaterial whether domestic reception equipment is capable of receiving
subscription radio broadcasting services when used:
(a) in isolation; or
(b) in conjunction with any other
equipment.
Exemptions
(7) The ACMA may, by legislative instrument,
exempt specified domestic reception equipment from subsections (2) and
(3).
Note: For specification by class, see subsection
13(3) of the Legislative Instruments Act 2003.
Definition
(8) In this
section:
supply has the same meaning as in the Trade
Practices Act 1974.
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.
Division 2—Interpretation
130D
Industry codes
For the purposes of this Part, an industry
code is a code developed under this Part (whether or not in response to
a request under this Part).
130E
Industry standards
For the purposes of this Part, an industry
standard is a standard determined under this Part.
130F
Industry activities
(1) For the purposes of this Part, each of
the following is an industry activity:
(a) providing a commercial television
broadcasting service;
(b) providing a national television
broadcasting service (within the meaning of Schedule 4);
(c) providing a community television
broadcasting service;
(d) providing a subscription
television broadcasting service;
(e) providing a television
broadcasting service under a class licence;
(ea) providing a commercial radio
broadcasting service;
(eb) providing a national radio
broadcasting service;
(ec) providing a community radio
broadcasting service;
(ed) subscription radio broadcasting
services provided under a class licence;
(ee) subscription radio narrowcasting
services provided under a class licence;
(ef) open narrowcasting radio services
provided under a class licence;
(f) providing a datacasting service
under a datacasting licence (other than a restricted datacasting licence);
(fa) providing a restricted datacasting
service under a restricted datacasting licence;
(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.
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 Trade
Practices Act 1974.
130G
Sections of the industry
(1) For the purposes of this Part, sections
of the industry are to be ascertained in accordance with this section.
(2) The ACMA may, by legislative instrument,
determine that persons carrying on, or proposing to carry on, one or more specified
kinds of industry activity constitute a section of the industry for the
purposes of this Part.
(3) The section must be identified in the
determination by a unique name and/or number.
(4) A determination under subsection (2)
has effect accordingly.
(5) Sections of the industry determined under
subsection (2):
(a) need not be mutually exclusive;
and
(b) may consist of the aggregate of
any 2 or more sections of the industry determined under subsection (2);
and
(c) may be subsets of a section of the
industry determined under subsection (2).
(6) Subsection (5) does not, by
implication, limit subsection (2).
130H
Participants in a section of the industry
For the purposes of this Part, if a
person is a member of a group that constitutes a section of the industry, the
person is a participant in that section of the industry.
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.
130L
Industry codes and industry standards not to deal with certain matters
For the purposes of this Part, an
industry code or an industry standard that deals with a particular matter has
no effect to the extent (if any) to which the matter is dealt with by:
(a) a code registered, or a standard
determined, under Part 6 of the Telecommunications Act 1997; or
(b) a code registered, or a standard
determined, under Part 9 of this Act; or
(c) a standard determined under
Part 9A of this Act; or
(d) a standard determined under
Part 4 of Schedule 4 to this Act; or
(e) a code registered, or a standard
determined, under Part 5 of Schedule 5 to this Act; or
(f) a code registered, or a standard
determined, under Part 4 of Schedule 6 to this Act; or
(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.
Division 4—Industry codes
130M
Registration of industry codes
(1) This section applies if:
(a) the ACMA is satisfied that a body
or association represents a particular section of the industry; and
(b) that body or association develops
an industry code that applies to participants in that section of the industry
and deals with one or more matters relating to the industry activities of those
participants; and
(c) the body or association gives a
copy of the code to the ACMA; and
(d) the ACMA is satisfied that:
(i) to the extent to which
the code deals with one or more matters of substantial relevance to the
community—the code provides appropriate community safeguards for that matter or
those matters; and
(ii) to the extent to which
the code deals with one or more matters that are not of substantial relevance
to the community—the code deals with that matter or those matters in an
appropriate manner; and
(e) the ACMA is satisfied that, before
giving the copy of the code to the ACMA:
(i) the body or
association published a draft of the code and invited members of the public to
make submissions to the body or association about the draft within a specified
period; and
(ii) the body or
association gave consideration to any submissions that were received from
members of the public within that period; and
(f) the ACMA is satisfied that,
before giving the copy of the code to the ACMA:
(i) the body or
association published a draft of the code and invited participants in that
section of the industry to make submissions to the body or association about
the draft within a specified period; and
(ii) the body or
association gave consideration to any submissions that were received from
participants in that section of the industry within that period.
(2) The ACMA must register the code by
including it in the Register of industry codes kept under section 130ZA.
(3) A period specified under
subparagraph (1)(e)(i) or (1)(f)(i) must run for at least 30 days.
(4) If:
(a) an industry code (the new
code) is registered under this Part; and
(b) the new code is expressed to
replace another industry code;
the other code ceases to be registered under this Part
when the new code is registered.
130N
ACMA may request codes
(1) If the
ACMA is satisfied that a body or association represents a particular section of
the industry, the ACMA may, by written notice given to the body or association,
request the body or association to:
(a) develop an industry code that
applies to participants in that section of the industry and deals with one or
more specified matters relating to the industry activities of those
participants; and
(b) give the ACMA a copy of the code
within the period specified in the notice.
(2) The period specified in a notice under
subsection (1) must run for at least 120 days.
(3) The ACMA must not make a request under
subsection (1) in relation to a particular section of the industry unless
the ACMA is satisfied that:
(a) the development of the code is
necessary or convenient in order to:
(i) provide appropriate
community safeguards; or
(ii) otherwise deal with
the performance or conduct of participants in that section of the industry; and
(b) in the absence of the request, it
is unlikely that an industry code would be developed within a reasonable
period.
(4) The ACMA may vary a notice under
subsection (1) by extending the period specified in the notice.
(5) Subsection (4) does not, by
implication, limit the application of subsection 33(3) of the Acts
Interpretation Act 1901.
(6) A notice under subsection (1) may
specify indicative targets for achieving progress in the development of the
code (for example, a target of 60 days to develop a preliminary draft of the
code).
130P
Publication of notice where no body or association represents a section of the
industry
(1) If the ACMA is satisfied that a
particular section of the industry is not represented by a body or association,
the ACMA may publish a notice in the Gazette:
(a) stating that, if such a body or
association were to come into existence within a specified period, the ACMA
would be likely to give a notice to that body or association under subsection
130N(1); and
(b) setting out the matter or matters
relating to the industry activities that would be likely to be specified in the
subsection 130N(1) notice.
(2) The period specified in a notice under
subsection (1) must run for at least 60 days.
130Q
Replacement of industry codes
(1) Changes to an industry code are to be
achieved by replacing the code instead of varying the code.
(2) If the replacement code differs only in
minor respects from the original code, section 130M has effect, in
relation to the registration of the code, as if paragraphs 130M(1)(e) and (f)
had not been enacted.
Note: Paragraphs 130M(1)(e) and (f) deal with
submissions about draft codes.
Division 5—Industry
standards
130R
ACMA may determine an industry standard if a request for an industry code is
not complied with
(1) This section applies if:
(a) the ACMA has made a request under
subsection 130N(1) in relation to the development of a code that is to:
(i) apply to participants
in a particular section of the industry; and
(ii) deal with one or more
matters relating to the industry activities of those participants; and
(b) any of the following conditions is
satisfied:
(i) the request is not
complied with;
(ii) if indicative targets
for achieving progress in the development of the code were specified in the
notice of request—any of those indicative targets were not met;
(iii) the request is
complied with, but the ACMA subsequently refuses to register the code; and
(c) the ACMA is satisfied that it is
necessary or convenient for the ACMA to determine a standard in order to:
(i) provide appropriate
community safeguards in relation to that matter or those matters; or
(ii) otherwise regulate
adequately participants in that section of the industry in relation to that
matter or those matters.
(2) The ACMA may, by legislative instrument,
determine a standard that applies to participants in that section of the
industry and deals with that matter or those matters. A standard under this
subsection is to be known as an industry standard.
(3) Before determining an industry standard
under this section, the ACMA must consult the body or association to whom the
request mentioned in paragraph (1)(a) was made.
(4) The Minister may give the ACMA a written
direction as to the exercise of its powers under this section.
130S
ACMA may determine industry standard where no industry body or association
formed
(1) This
section applies if:
(a) the ACMA is satisfied that a
particular section of the industry is not represented by a body or association;
and
(b) the ACMA has published a notice
under subsection 130P(1) relating to that section of the industry; and
(c) that notice:
(i) states that, if such a
body or association were to come into existence within a particular period, the
ACMA would be likely to give a notice to that body or association under
subsection 130N(1); and
(ii) sets out one or more
matters relating to the industry activities of the participants in that section
of the industry; and
(d) no such body or association comes
into existence within that period; and
(e) the ACMA is satisfied that it is
necessary or convenient for the ACMA to determine a standard in order to:
(i) provide appropriate
community safeguards in relation to that matter or those matters; or
(ii) otherwise regulate
adequately participants in that section of the industry in relation to that
matter or those matters.
(2) The ACMA may, by legislative instrument,
determine a standard that applies to participants in that section of the
industry and deals with that matter or those matters. A standard under this
subsection is to be known as an industry standard.
(3) The Minister may give the ACMA a written
direction as to the exercise of its powers under this section.
130T
ACMA may determine industry standards—total failure of industry codes
(1) This section applies if:
(a) an industry code that:
(i) applies to
participants in a particular section of the industry; and
(ii) deals with one or more
matters relating to the industry activities of those participants;
has been registered under this
Part for at least 180 days; and
(b) the ACMA is satisfied that the
code is totally deficient (as defined by subsection (6)); and
(c) the ACMA has given the body or
association that developed the code a written notice requesting that
deficiencies in the code be addressed within a specified period; and
(d) that period ends and the ACMA is
satisfied that it is necessary or convenient for the ACMA to determine a
standard that applies to participants in that section of the industry and deals
with that matter or those matters.
(2) The period specified in a notice under
paragraph (1)(c) must run for at least 30 days.
(3) The ACMA may, by legislative instrument,
determine a standard that applies to participants in that section of the
industry and deals with that matter or those matters. A standard under this
subsection is to be known as an industry standard.
(4) If the ACMA is satisfied that a body or
association represents that section of the industry, the ACMA must consult the
body or association before determining an industry standard under
subsection (3).
(5) The industry code ceases to be registered
under this Part on the day on which the industry standard comes into force.
(6) For the
purposes of this section, an industry code that applies to participants in a
particular section of the industry and deals with one or more matters relating
to the industry activities of those participants is totally deficient if,
and only if:
(a) the code is not operating to
provide appropriate community safeguards in relation to that matter or those
matters; or
(b) the code is not otherwise
operating to regulate adequately participants in that section of the industry
in relation to that matter or those matters.
(7) The Minister may give the ACMA a written
direction as to the exercise of its powers under this section.
130U
ACMA may determine industry standards—partial failure of industry codes
(1) This section applies if:
(a) an industry code that:
(i) applies to
participants in a particular section of the industry; and
(ii) deals with 2 or more
matters relating to the industry activities of those participants;
has been registered under this
Part for at least 180 days; and
(b) section 130T does not apply
to the code; and
(c) the ACMA is satisfied that the
code is deficient (as defined by subsection (6)) to the extent to which
the code deals with one or more of those matters (the deficient matter or
deficient matters); and
(d) the ACMA has given the body or
association that developed the code a written notice requesting that
deficiencies in the code be addressed within a specified period; and
(e) that period ends and the ACMA is
satisfied that it is necessary or convenient for the ACMA to determine a
standard that applies to participants in that section of the industry and deals
with the deficient matter or deficient matters.
(2) The period specified in a notice under
paragraph (1)(d) must run for at least 30 days.
(3) The ACMA may, by legislative instrument,
determine a standard that applies to participants in that section of the
industry and deals with the deficient matter or deficient matters. A standard
under this subsection is to be known as an industry standard.
(4) If the ACMA is satisfied that a body or
association represents that section of the industry, the ACMA must consult the
body or association before determining an industry standard under
subsection (3).
(5) On and after the day on which the
industry standard comes into force, the industry code has no effect to the
extent to which it deals with the deficient matter or deficient matters.
However, this subsection does not affect:
(a) the continuing registration of the
remainder of the industry code; or
(b) any investigation, proceeding or
remedy in respect of a contravention of the industry code that occurred before
that day.
(6) For the purposes of this section, an
industry code that applies to participants in a particular section of the industry
and deals with 2 or more matters relating to the industry activities of those
participants is deficient to the extent to which it deals with a
particular one of those matters if, and only if:
(a) the code is not operating to
provide appropriate community safeguards in relation to that matter; or
(b) the code is not otherwise
operating to regulate adequately participants in that section of the industry
in relation to that matter.
(7) The Minister may give the ACMA a written
direction as to the exercise of its powers under this section.
130V
Compliance with industry standards
(1) If:
(a) an industry standard that applies
to participants in a particular section of the industry is registered under
this Part; and
(b) a
person is a participant in that section of the industry;
the person must comply with
the industry standard.
Offence
(2) A person commits an offence if:
(a) the person is subject to a
requirement under subsection (1); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes
the requirement.
Penalty: 1,500 penalty units.
Civil penalty
(3) Subsection (1) is a civil penalty
provision.
130W
Formal warnings—breach of industry standards
(1) This section applies to a person who is a
participant in a particular section of the industry.
(2) The ACMA may issue a formal warning if
the person contravenes an industry standard registered under this Part.
130X
Variation of industry standards
The ACMA may, by legislative instrument,
vary an industry standard that applies to participants in a particular section
of the industry if it is satisfied that it is necessary or convenient to do so
to:
(a) provide appropriate community
safeguards in relation to one or more matters relating to the industry
activities of those participants; and
(b) otherwise regulate adequately
those participants in relation to one or more matters relating to the industry
activities of those participants.
130Y
Revocation of industry standards
(1) The ACMA may, by legislative instrument,
revoke an industry standard.
(2) If:
(a) an industry code is registered
under this Part; and
(b) the code is expressed to replace
an industry standard;
the industry standard is revoked when the code is
registered.
130Z
Public consultation on industry standards
(1) Before
determining or varying an industry standard, the ACMA must:
(a) cause to be published in a
newspaper circulating in each State a notice:
(i) stating that the ACMA
has prepared a draft of the industry standard or variation; and
(ii) stating that free
copies of the draft will be made available to members of the public during
normal office hours throughout the period specified in the notice; and
(iii) specifying the place
or places where the copies will be available; and
(iv) inviting interested
persons to give written comments about the draft to the ACMA within the period
specified under subparagraph (ii); and
(b) make copies of the draft available
in accordance with the notice.
(2) The period specified under
subparagraph (1)(a)(ii) must run for at least 30 days after the
publication of the notice.
(3) Subsection (1) does not apply to a
variation if the variation is of a minor nature.
(4) If interested persons have given comments
in accordance with a notice under subsection (1), the ACMA must have due
regard to those comments in determining or varying the industry standard, as
the case may be.
(5) In this
section:
State includes the Australian Capital
Territory and the Northern Territory.
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.
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.
135
Prohibition on providing a community radio broadcasting service without a
licence
A person must not provide a community
radio broadcasting service with the use of the broadcasting services bands
unless the person has a licence to provide that service.
Penalty: 50 penalty units.
136
Continuing offences
A person who breaches a provision of
this Division is guilty of a separate offence in respect of each day (including
a day of a conviction under this section or any subsequent day) during which
the breach continues.
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.
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.
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.
(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.
Division 3—Action in relation to breaches by licensees
139
Offence for breach of conditions of licences and class licences
(1) A person is guilty of an offence if:
(a) the person is a commercial
television broadcasting licensee; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches a
condition of the licence set out in subclause 7(1) (other than paragraph
7(1)(ia)) of Schedule 2.
Penalty: 2,000 penalty units.
(1A) A person commits an offence if:
(a) the person is a commercial
television broadcasting licensee; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the
condition of the licence set out in paragraph 7(1)(ia) of Schedule 2.
Penalty: 60 penalty units.
(1B) An offence against subsection (1A) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(1C) Subsection (1A) is a designated
infringement notice provision.
(2) A person is guilty of an offence if:
(a) the person is a subscription
television broadcasting licensee; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches a
condition of a subscription television broadcasting licence set out in section 103P,
103Q, 103S, 103T, 103V, 103W, 103Y or 103Z, or in subclause 10(1) of Schedule 2.
Penalty: 1,000 penalty units.
(3) A person is guilty of an offence if:
(a) the person is a commercial radio
broadcasting licensee; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches a
condition of the licence set out in subclause 8(1) (other than paragraph
8(1)(ha)) of Schedule 2.
Penalty: 500 penalty units.
(3A) A person commits an offence if:
(a) the person is a commercial radio
broadcasting licensee; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the
condition of the licence set out in paragraph 8(1)(ha) of Schedule 2.
Penalty: 60 penalty units.
(3B) An offence against subsection (3A) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3C) Subsection (3A) is a designated
infringement notice provision.
(4) A person is guilty of an offence if:
(a) the person is a community
broadcasting licensee (other than a temporary community broadcasting licensee);
and
(b) the person engages in conduct; and
(c) the
person’s conduct breaches a condition of the licence set out in subclause 9(1)
of Schedule 2.
Penalty: 50 penalty units.
(5) A person is guilty of an offence if:
(a) the person is a temporary
community broadcasting licensee; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches a
condition of the licence set out in subclause 9(1) (other than paragraph
9(1)(h)) of Schedule 2.
Penalty: 50 penalty units.
(6) A person is guilty of an offence if:
(a) the person provides a subscription
radio broadcasting service, a subscription narrowcasting service or an open
narrowcasting service; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches a
condition set out in subclause 11(1) of Schedule 2.
Penalty: 50 penalty units.
(7) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
140
Continuing offences
A person who breaches section 139
is guilty of a separate offence in respect of each day (including a day of a
conviction under this section or any subsequent day) during which the breach
continues.
140A
Civil penalty provisions relating to breach of conditions of licences and class
licences
(1) A commercial television broadcasting
licensee must not breach a condition of the licence set out in subclause 7(1)
of Schedule 2.
(2) A subscription television broadcasting
licensee must not breach a condition of a subscription television broadcasting
licence set out in:
(a) section 103P, 103Q, 103S,
103T, 103V, 103W, 103Y or 103Z; or
(b) subclause 10(1) of Schedule 2.
(3) A commercial radio broadcasting licensee
must not breach a condition of the licence set out in subclause 8(1) of
Schedule 2.
(4) A community broadcasting licensee (other
than a temporary community broadcasting licensee) must not breach a condition
of the licence set out in subclause 9(1) of Schedule 2.
(5) A temporary community broadcasting
licensee must not breach a condition of the licence set out in subclause 9(1)
(other than paragraph 9(1)(h)) of Schedule 2.
(6) A person who provides a subscription
radio broadcasting service, a subscription narrowcasting service or an open
narrowcasting service must not breach a condition set out in subclause 11(1) of
Schedule 2.
Civil penalty
(7) Subsections (1), (2), (3), (4), (5)
and (6) are civil penalty provisions.
Continuing breaches
(8) A person who contravenes a provision of
this section commits a separate contravention of that provision in respect of
each day (including a day of the making of a relevant civil penalty order or
any subsequent day) during which the contravention continues.
141
Remedial directions—licence conditions, class licences and codes of practice
Licence conditions relating to commercial, community or
subscription services
(1) If the ACMA is satisfied that a person
who is:
(a) a commercial television
broadcasting licensee; or
(b) a commercial radio broadcasting
licensee; or
(c) a community broadcasting licensee;
or
(d) a subscription television
broadcasting licensee;
has breached, or is breaching, a condition of the licence,
the ACMA may, by written notice given to the person, direct the person to take
action directed towards ensuring that the person does not breach that
condition, or is unlikely to breach that condition, in the future.
(2) The
following are examples of the kinds of direction that may be given to a person
under subsection (1):
(a) a direction that the person
implement effective administrative systems for monitoring compliance with a
condition of the licence;
(b) a direction that the person
implement a system designed to give the person’s employees, agents and
contractors a reasonable knowledge and understanding of the requirements of a
condition of the licence, in so far as those requirements affect the employees,
agents or contractors concerned.
(3) If the ACMA is satisfied that a person
who is in a position to exercise control of:
(a) a commercial television
broadcasting licence; or
(b) a commercial radio broadcasting
licence;
has caused, or is causing, the licensee to breach a
condition of the licence, the ACMA may, by written notice given to the person,
direct the person to take action directed towards ensuring that the person does
not cause the licensee to breach that condition, or is unlikely to cause the
licensee to breach that condition, in the future.
Class licences
(4) If the ACMA is satisfied that a person
who provides:
(a) a subscription radio broadcasting
service; or
(b) a subscription narrowcasting
service; or
(c) an open narrowcasting service;
has breached, or is breaching, a condition of the relevant
class licence, the ACMA may, by written notice given to the person, direct the
person to take action directed towards ensuring that the person does not breach
that condition, or is unlikely to breach that condition, in the future.
(5) The
following are examples of the kinds of direction that may be given to a person
under subsection (4):
(a) a direction that the person
implement effective administrative systems for monitoring compliance with a
condition of the relevant class licence;
(b) a direction that the person
implement a system designed to give the person’s employees, agents and
contractors a reasonable knowledge and understanding of the requirements of a
condition of the relevant class licence, in so far as those requirements affect
the employees, agents or contractors concerned.
Codes of practice
(6) If the ACMA is satisfied that a person
who provides:
(a) a subscription radio broadcasting
service; or
(b) a subscription narrowcasting
service; or
(c) an open narrowcasting service;
has breached, or is breaching, a registered code of
practice that applies to the service, the ACMA may, by written notice given to
the person, direct the person to take action directed towards ensuring that the
person does not breach that code of practice, or is unlikely to breach that
code of practice, in the future.
(7) The
following are examples of the kinds of direction that may be given to a person
under subsection (6):
(a) a direction that the person
implement effective administrative systems for monitoring compliance with a
registered code of practice that applies to the service concerned;
(b) a direction that the person
implement a system designed to give the person’s employees, agents and
contractors a reasonable knowledge and understanding of the requirements of a
registered code of practice that applies to the service concerned, in so far as
those requirements affect the employees, agents or contractors concerned.
142
Breach of remedial direction—offences
(1) A person commits an offence if:
(a) the person has been given a notice
under section 141; and
(b) the person is:
(i) a commercial
television broadcasting licensee; or
(ii) in a position to
exercise control of a commercial television broadcasting licence; and
(c) the person engages in conduct; and
(d) the person’s conduct contravenes a
requirement in the notice.
Penalty: 20,000 penalty units.
(2) A person commits an offence if:
(a) a person has been given a notice
under section 141; and
(b) the person is a subscription
television broadcasting licensee; and
(c) the person engages in conduct; and
(d) the person’s conduct contravenes a
requirement in the notice.
Penalty: 2,000 penalty units.
(3) A person
commits an offence if:
(a) the person has been given a notice
under section 141; and
(b) the person is:
(i) a commercial radio
broadcasting licensee; or
(ii) in a position to
exercise control of a commercial radio broadcasting licence; and
(c) the person engages in conduct; and
(d) the person’s conduct contravenes a
requirement in the notice.
Penalty: 500 penalty units.
(4) A person commits an offence if:
(a) the person has been given a notice
under section 141; and
(b) the person is not:
(i) a commercial
television broadcasting licensee; or
(ii) in a position to
exercise control of a commercial television broadcasting licence; or
(iii) a subscription
television broadcasting licensee; or
(iv) a commercial radio
broadcasting licensee; or
(v) in a position to
exercise control of a commercial radio broadcasting licence; and
(c) the person engages in conduct; and
(d) the person’s conduct contravenes a
requirement in the notice.
Penalty: 50 penalty units.
(5) A person who contravenes subsection (1),
(2), (3) or (4) commits a separate offence in respect of each day (including a
day of a conviction for the offence or any later day) during which the
contravention continues.
(6) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
142A
Breach of remedial direction—civil penalty provision
(1) A person must comply with a notice under
section 141.
(2) Subsection (1) is a civil penalty
provision.
(3) A person who contravenes subsection (1)
commits a separate contravention of that subsection in respect of each day
(including a day of the making of a relevant civil penalty order or any
subsequent day) during which the contravention continues.
143
Suspension and cancellation
(1) If a commercial television broadcasting
licensee, a commercial radio broadcasting licensee, a subscription television
broadcasting licensee or a community broadcasting licensee:
(a) fails to comply with a notice
under section 141; or
(b) breaches a condition of the
licence;
the ACMA may, by notice in writing given to the person:
(c) suspend the licence for such
period, not exceeding 3 months, as is specified in the notice; or
(d) cancel the licence.
(1A) If:
(a) a subscription television
broadcasting licensee provides a subscription TV drama service (within the
meaning of Division 2A of Part 7); and
(b) the
licence is suspended because of a breach of a condition set out in that
Division;
the ACMA may take such action, by way of suspending one or
more subscription television broadcasting licences held by:
(c) the licensee; or
(d) a
related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same,
or a substantially similar, service is not transmitted by the licensee or the
related body corporate, as the case may be, during the period of suspension.
(1B) If:
(a) a subscription television
broadcasting licensee provides a subscription TV drama service (within the
meaning of Division 2A of Part 7); and
(b) the licence is cancelled because
of a breach of a condition set out in that Division;
the ACMA may take such action, by way of cancelling one or
more subscription television broadcasting licences held by:
(c) the licensee; or
(d) a related body corporate of the
licensee;
as the ACMA considers necessary to ensure that the same,
or a substantially similar, service is not transmitted by the licensee or the
related body corporate, as the case may be, at a time after the cancellation.
(2) If the ACMA proposes to take action under
subsection (1), (1A) or (1B) the ACMA must give to the person:
(a) written notice of its intention;
and
(b) a reasonable opportunity to make
representations to the ACMA in relation to the proposed action.
(3) In this section:
related body corporate has the same meaning
as in the Corporations Act 2001.
Division 4—Action in relation to class licences
144
Application to Federal Court
(1) If the ACMA is satisfied that a person is
providing subscription radio broadcasting services, subscription narrowcasting
services or open narrowcasting services otherwise than in accordance with the
relevant class licence, the ACMA may apply to the Federal Court for an order
that the person cease providing those services.
(2) If the Federal Court is satisfied, on
such an application, that the person is providing subscription radio
broadcasting services, subscription narrowcasting services or open
narrowcasting services otherwise than in accordance with the relevant class
licence, the Federal Court may order the person to cease providing those
services.
Part 10A—Anti‑hoarding rules
Division 1—Introduction
146A
Simplified outline
The following
is a simplified outline of this Part:
• This Part sets up a regime
to discourage commercial television broadcasting licensees, program suppliers,
the ABC and the SBS from hoarding rights to provide live television coverage of
certain events or series of events.
• The Minister may make a
disallowable instrument designating the events or series that are covered by
this Part. The instrument must also specify an offer time for the
event or series. The offer time must occur 30 days or more before the start of
the event or series unless the Minister is satisfied that the offer time should
occur closer to the start of the event or series.
• If a commercial television
broadcasting licensee acquires a right to provide live television coverage of a
designated event or series, but does not intend to televise the whole or a part
of the event or series, the licensee must, before the offer time, offer to
transfer the right to televise the whole or the part of the event or series,
for a nominal charge, to the ABC and the SBS. The offer must remain open for
acceptance for a minimum period of 7 days.
• If a commercial television
broadcasting licensee’s program supplier is entitled to confer on the licensee
a right to provide live television coverage of a designated event or series,
but does not confer the right to televise the whole or a part of the event or
series, the program supplier must, before the offer time, offer to transfer the
right to televise the whole or the part of the event or series, for a nominal
charge, to the ABC and the SBS. The offer must remain open for acceptance for a
minimum period of 7 days.
• If the ABC acquires a right
to provide live television coverage of a designated event or series, but does not
intend to televise the whole or a part of the event or series, the ABC must,
before the offer time, offer to transfer the right to televise the whole or the
part of the event or series, for a nominal charge, to the SBS. The offer must
remain open for acceptance for a minimum period of 7 days.
• If the SBS acquires a right
to provide live television coverage of a designated event or series, but does
not intend to televise the whole or a part of the event or series, the SBS
must, before the offer time, offer to transfer the right to televise the whole
or the part of the event or series, for a nominal charge, to the ABC. The offer
must remain open for acceptance for a minimum period of 7 days.
146B
Definitions
In this Part:
Central‑Western time zone means:
(a) the area consisting of:
(i) South Australia; and
(ii) Broken Hill (within
the meaning of the Standard Time Act 1987 of New South Wales); or
(b) Western Australia; or
(c) the Northern Territory; or
(d) the Territory of Christmas Island;
or
(e) the Territory of Cocos (Keeling) Islands.
commercial television broadcasting service
means a commercial broadcasting service that provides television programs.
coverage area means an area that corresponds
to a licence area.
designated event has the meaning given by
section 146C.
designated series of events has the meaning
given by section 146C.
licence area means a licence area for a
commercial television broadcasting licence.
live, in relation to the televising of an
event, or series of events, has the meaning generally accepted within the
television industry.
national television broadcasting service
means a national broadcasting service that provides television programs.
offer time has the meaning given by section 146C.
program supplier has the meaning given by
section 146D.
related body corporate has the same meaning
as in the Corporations Act 2001.
supply, in relation to programs, includes
confer rights to televise the programs.
televise means:
(a) in relation to a commercial
television broadcasting licensee—televise on a commercial television
broadcasting service provided by the licensee; or
(b) in relation to a national
broadcaster—televise on a national television broadcasting service provided by
the broadcaster.
146C
Designated events and designated series of events
(1) The Minister may, by writing, declare
that a specified event is a designated event for the purposes of
this Part.
Note: For specification by class, see subsection
46(2) of the Acts Interpretation Act 1901.
(2) The Minister may, by writing, declare
that a specified series of events is a designated series of
events for the purposes of this Part.
Note: For specification by class, see subsection
46(2) of the Acts Interpretation Act 1901.
(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.
(7) A declaration under this section is a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
146CA
When event or series is eligible for delayed televising in the Central‑Western
time zones
(1) The Minister may, by writing, determine
that a specified designated event is eligible for delayed televising in the
Central‑Western time zones.
Note: For specification by class, see subsection
46(2) of the Acts Interpretation Act 1901.
(2) The Minister may, by writing, determine
that a specified designated series of events is eligible for delayed televising
in the Central‑Western time zones.
Note: For specification by class, see subsection
46(2) of the Acts Interpretation Act 1901.
(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).
(5) A determination under this section is a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
(6) A copy of a determination under this
section is to be published in the Gazette.
Note: The following is an example of a situation in
which the Minister might make a determination under this section: in a case
where a day‑night cricket match begins at 2 pm in Sydney, delayed
televising of the match in Perth would allow Perth viewers the same evening
viewing time as viewers in Sydney.
146D
Program suppliers
(1) This section sets out the 3 situations in
which a person is a program supplier of a commercial television
broadcasting licensee for the purposes of this Part.
Agreements
(2) A person is a program supplier
of a commercial television broadcasting licensee for the purposes of this Part
if:
(a) the person has an agreement to
supply the licensee with programs that can be televised by the licensee; and
(b) the person supplies, or may reasonably
be expected to supply, the licensee with at least two‑thirds of:
(i) all the sporting
programs that are, or are to be, televised by the licensee during the period
when the agreement is in force; or
(ii) all the prescribed
programs that are, or are to be, televised by the licensee during the period
when the agreement is in force;
whether or not the programs are,
or are to be, supplied under the agreement.
Related body corporate
(3) A person is a program supplier of
a commercial television broadcasting licensee for the purposes of this Part if
the person:
(a) is a related body corporate of the
licensee; and
(b) supplies, or proposes to supply,
the licensee with any of:
(i) the sporting programs
that are, or are to be, televised by the licensee; or
(ii) the prescribed
programs that are, or are to be, televised by the licensee.
ACMA declaration
(4) If:
(a) apart from this subsection, a
person is not a program supplier of a commercial television broadcasting
licensee; and
(b) the person supplies, or proposes
to supply, the licensee with any of:
(i) the sporting programs
that are, or are to be, televised by the licensee; or
(ii) the prescribed
programs that are, or are to be, televised by the licensee; and
(c) having regard to the following
matters, the ACMA is satisfied that the person should be treated as a program
supplier of the licensee:
(i) the purpose underlying
this Part;
(ii) whether the
relationship between the person and the licensee was entered into or maintained
for the sole or dominant purpose of avoiding the application of any provision
of this Part;
(iii) any other relevant
matters;
the ACMA may, by writing, declare that the person is a program
supplier of the licensee for the purposes of this Part.
(5) A declaration under subsection (4)
has effect accordingly.
(6) The ACMA must arrange for a copy of a
declaration under subsection (4) to be:
(a) given to the person and licensee
concerned; and
(b) published in the Gazette.
Division 2—Commercial television broadcasting licensees
146E
Anti‑hoarding rule—licensees
(1) A commercial television broadcasting
licensee contravenes the anti‑hoarding rule if:
(a) the licensee has a right to
televise live, in the licence area for the licence, the whole of a designated
event or the whole of a designated series of events; and
(b) the licensee acquired the right
when the event was a designated event, or the series was a designated series of
events, as the case may be; and
(c) either:
(i) the licensee did not
televise live in that area any part of the event or series; or
(ii) the licensee televised
live in that area some, but not all, of the event or series; and
(d) neither the licensee nor the
licensee’s program supplier, before the offer time for the event or series,
offered to transfer to each national broadcaster, in accordance with sections 146G
and 146H, the right to televise live in the corresponding coverage area:
(i) if subparagraph (c)(i)
applies—the whole of the event or series; or
(ii) if subparagraph (c)(ii)
applies—the remainder of the event or series.
Note 1: For compliance by licensees, see clause 7
of Schedule 2.
Note 2: For delayed televising in the Central‑Western
time zones, see section 146KA.
(2) For the purposes of subsection (1),
a licensee is taken to have televised live the whole of an event, or the whole
of a series of events, if the licensee televises live all but an insubstantial
proportion of the event or series, as the case may be.
Note: For example, interruptions by way of
commercial breaks, news breaks, program promotions, announcements or brief
crosses to other live events would amount to an insubstantial proportion of the
event or series being televised.
(3) If a commercial television broadcasting
licensee has a right to televise live a substantial proportion of a designated
event, this section has effect, in relation to the licensee, as if that
proportion were a designated event in its own right.
(4) If a commercial television broadcasting
licensee has a right to televise live a substantial proportion of a designated
series of events, this section has effect, in relation to the licensee, as if
that proportion were a designated series of events in its own right.
146F
Anti‑hoarding rule—program suppliers
(1) A commercial television broadcasting licensee’s
program supplier must not intentionally or recklessly contravene the anti‑hoarding
rule.
Penalty: 2,000 penalty units.
(2) A commercial television broadcasting
licensee’s program supplier contravenes the anti‑hoarding rule
if:
(a) the program supplier is entitled
to confer on the licensee (the first licensee) a right to
televise live, in the licence area for the licence, the whole of a designated
event or the whole of a designated series of events; and
(b) the program supplier acquired the
entitlement when the event was a designated event, or the series was a
designated series of events, as the case may be; and
(c) either:
(i) the program supplier
did not confer on the first licensee, or on another commercial television
broadcasting licensee whose licence area is the same as that of the first
licensee, the right to televise live in that area any part of the event or
series; or
(ii) the program supplier
conferred on the first licensee, or on another commercial television
broadcasting licensee whose licence area is the same as that of the first
licensee, the right to televise live in that area some, but not all, of the
event or series; and
(d) the
program supplier did not, before the offer time for the event or series, offer
to transfer to each national broadcaster, in accordance with sections 146G
and 146H, the right to televise live in the corresponding coverage area:
(i) if subparagraph (c)(i)
applies—the whole of the event or series; or
(ii) if subparagraph (c)(ii)
applies—the remainder of the event or series.
(3) If a commercial television broadcasting
licensee’s program supplier is entitled to confer on the licensee a right to
televise live a substantial proportion of a designated event, this section has
effect, in relation to the program supplier, as if that proportion were a
designated event in its own right.
(4) If a commercial television broadcasting
licensee’s program supplier is entitled to confer on the licensee a right to
televise live a substantial proportion of a designated series of events, this
section has effect, in relation to the program supplier, as if that proportion
were a designated series of events in its own right.
(5) This section has no effect to the extent
(if any) to which it purports to authorise the acquisition of property if that
acquisition:
(a) is otherwise than on just terms;
and
(b) would be invalid because of
paragraph 51(xxxi) of the Constitution.
(6) In this section:
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in
paragraph 51(xxxi) of the Constitution.
146G
What constitutes an offer to transfer rights to televise live events
(1) For the purposes of this Division, a
commercial television broadcasting licensee, or a program supplier, is taken to
offer to transfer to a national broadcaster the right to televise live:
(a) the whole or a part of a
particular designated event; or
(b) the
whole or a part of a particular designated series of events;
if, and only if, the licensee or supplier, as the case may
be, offers to make an arrangement (whatever its terms or form) which in
substance gives the national broadcaster the right to televise live the whole
or the part of the event or series, as the case may be.
(2) In determining whether an arrangement is
covered by subsection (1), regard must be had to the practical effect of
the arrangement.
146H
Offers to transfer rights to televise live events
(1) This section applies to an offer by a
commercial television broadcasting licensee, or a program supplier, to transfer
to a particular national broadcaster (the first national
broadcaster) the right to televise live:
(a) the whole or a part of a
particular designated event; or
(b) the whole or a part of a
particular designated series of events.
(2) The offer must be in writing.
(3) The offer must be given to the Managing
Director of the first national broadcaster.
(4) The offer must be given to the Managing
Director of the first national broadcaster at or about the same time as a corresponding
offer is made to the Managing Director of the other national broadcaster.
(5) The offer must be open for acceptance by
the first national broadcaster throughout the period:
(a) beginning when the offer is given
to the Managing Director of the first national broadcaster; and
(b) ending immediately before the
start of the event or series.
(6) The period referred to in subsection (5)
must not be shorter than 7 days.
(7) The offer must require that the
consideration to be given by the first national broadcaster is to consist of a
promise to pay $1, if and when demanded by the licensee or the program
supplier, as the case requires.
(8) The first national broadcaster is not
entitled to accept the offer if a corresponding offer has already been accepted
by the other national broadcaster, unless the other national broadcaster
consents in writing.
(9) If:
(a) the offer is accepted by the first
national broadcaster; and
(b) a corresponding offer is
simultaneously accepted by the other national broadcaster;
then:
(c) the licensee or program supplier,
as the case may be, may elect to treat one of those acceptances as having
preceded the other of those acceptances; and
(d) if such an election is made—the
other of those acceptances has no effect unless the national broadcaster who
gave the preceding acceptance consents in writing.
146J
Contracts to acquire rights to televise live events must authorise the transfer
of the rights
(1) Neither a commercial television
broadcasting licensee, nor the licensee’s program supplier, must enter into a
contract under which the licensee or the program supplier, as the case may be:
(a) acquires; or
(b) will be entitled to acquire
(whether on the fulfilment of a condition or otherwise);
rights to televise live the whole, or a substantial
proportion, of a designated event, or of a designated series of events, unless
the contract authorises the licensee or program supplier, as the case may be,
to make an offer of the kind referred to in section 146E.
(2) A commercial television broadcasting
licensee’s program supplier must not enter into a contract under which the
program supplier:
(a) is entitled; or
(b) will be entitled (whether on the
fulfilment of a condition or otherwise);
to confer on the licensee the right to televise live the
whole, or a substantial proportion, of a designated event, or of a designated
series of events, unless the contract authorises the program supplier to make
an offer of the kind referred to in section 146F.
(3) A contract entered into in contravention
of subsection (1) or (2) is void.
146K
Simultaneous events in a series
Licensees
(1) For the purposes of this Division, if:
(a) a commercial television
broadcasting licensee has the right to televise live, in the licence area for
the licence, a particular designated series of events; and
(b) during a particular period, 2 or
more events in that series (the simultaneous events) wholly or
partly overlap; and
(c) during that period, the licensee
televises live in that area one of those simultaneous events;
the licensee is taken, during that period, to have
televised live in that area the remainder of those simultaneous events.
Note: For delayed televising in the Central‑Western
time zones, see section 146KA.
(2) For the purposes of paragraph (1)(c),
a licensee is taken to have televised live the whole of an event if the
licensee televises live all but an insubstantial proportion of the event.
Note: For example, interruptions by way of
commercial breaks, news breaks, program promotions, announcements or brief
crosses to other live events would amount to an insubstantial proportion of the
event being televised.
(3) If a commercial television broadcasting
licensee has a right to televise live a substantial proportion of a designated
series of events, subsection (1) has effect, in relation to the licensee,
as if that proportion were a designated series of events in its own right.
Program suppliers
(4) For the purposes of this Division, if:
(a) a commercial television
broadcasting licensee’s program supplier is entitled to confer on the licensee
a right to televise live, in the licence area for the licence, a particular
designated series of events; and
(b) during a particular period, 2 or
more events in that series (the simultaneous events) wholly or
partly overlap; and
(c) the program supplier conferred on
the licensee the right to televise live during that period in that area one of
those simultaneous events;
the program supplier is taken to have conferred on the
licensee the right to televise live during that period in that area the
remainder of those simultaneous events.
(5) If a commercial television broadcasting
licensee’s program supplier is entitled to confer on the licensee a right to
televise live a substantial proportion of a designated series of events, subsection (4)
has effect, in relation to the program supplier, as if that proportion were a
designated series of events in its own right.
146KA
Delayed televising in the Central‑Western time zones
(1) For the purposes of paragraph 146E(1)(c),
if:
(a) a commercial television
broadcasting licensee televises, in the licence area for the licence:
(i) a designated event or
a designated series of events; or
(ii) a part of a designated
event or a part of a designated series of events; and
(b) the event or series is eligible
for delayed televising in the Central‑Western time zones; and
(c) apart from this subsection, the
televising mentioned in paragraph (a) is not live; and
(d) the licence area is wholly or
substantially within a particular Central‑Western time zone; and
(e) assuming
the event or series, or the part of the event or series, as the case may be,
had been televised live in Sydney—the event or series, or the part of the event
or series, as the case may be, is televised, as mentioned in paragraph (a),
not later than the local time in that zone that is equivalent to the time at
which the event or series, or the part of the event or series, as the case may
be, was televised live in Sydney;
the event or series, or the part of the event or series,
as the case may be, is taken to be televised live by the licensee in the
licence area.
(2) For the
purposes of paragraph 146K(1)(c), if:
(a) a commercial television
broadcasting licensee has the right to televise live, in the licence area for
the licence, a particular designated series of events; and
(b) during a particular period, 2 or
more events in that series wholly or partly overlap; and
(c) the licensee televises in the
licence area one of those events; and
(d) the series is eligible for delayed
televising in the Central‑Western time zones; and
(e) apart from this subsection, the
televising mentioned in paragraph (c) is not live; and
(f) the licence area is wholly or
substantially within a particular Central‑Western time zone; and
(g) assuming the event had been
televised live in Sydney—the event is televised, as mentioned in paragraph (c),
not later than the local time in that zone that is equivalent to the time at
which the event was televised live in Sydney;
the event is taken to be televised live by the licensee in
the licence area during that period.
(3) For the purposes of subsections (1)
and (2), a licensee is taken to have televised live the whole of an event, or
the whole of a series of events, if the licensee televises all but an
insubstantial proportion of the event or series, as the case may be.
Note: For example, interruptions by way of
commercial breaks, news breaks, program promotions, announcements or brief
crosses to other 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.
Division 3—National broadcasters
146L
Anti‑hoarding rule
(1) A national broadcaster must not
contravene the anti‑hoarding rule.
(2) A national broadcaster contravenes
the anti‑hoarding rule if:
(a) the national broadcaster has a
right to televise live, in a coverage area, the whole of a designated event, or
the whole of a designated series of events; and
(b) the national broadcaster acquired
the right when the event was a designated event, or the series was a designated
series of events, as the case may be; and
(c) either:
(i) the national
broadcaster did not televise live in that area any part of the event or series;
or
(ii) the national
broadcaster televised live in that area some, but not all, of the event or
series; and
(d) the national broadcaster did not,
before the offer time for the event or series of events, offer to transfer to
the other national broadcaster, in accordance with sections 146M and 146N,
the right to televise live in that area:
(i) if subparagraph (c)(i)
applies—the whole of the event or series; or
(ii) if subparagraph (c)(ii)
applies—the remainder of the event or series.
Note: For delayed televising in the Central‑Western
time zones, see section 146R.
(3) For the purposes of subsection (2),
a national broadcaster is taken to have televised live the whole of an event,
or the whole of a series of events, if the national broadcaster televises live
all but an insubstantial proportion of the event or series, as the case may be.
Note 1: For example, in the case of the ABC,
interruptions by way of news breaks, program promotions, announcements or brief
crosses to other live events would amount to an insubstantial proportion of the
event or series being televised.
Note 2: For example, in
the case of the SBS, interruptions by way of commercial breaks, news breaks,
program promotions, announcements or brief crosses to other live events would
amount to an insubstantial proportion of the event or series being televised.
(4) If a national broadcaster has a right to
televise live a substantial proportion of a designated event, this section has
effect, in relation to the national broadcaster, as if that proportion were a
designated event in its own right.
(5) If a national broadcaster has a right to
televise live a substantial proportion of a designated series of events, this
section has effect, in relation to the national broadcaster, as if that
proportion were a designated series of events in its own right.
(6) This section does not apply to a right
acquired by a national broadcaster because of the operation of Division 2
or this Division.
146M
What constitutes an offer to transfer rights to televise live events
(1) For the purposes of this Division, a
national broadcaster (the first national broadcaster) is taken to
offer to transfer to the other national broadcaster the right to televise live:
(a) the whole or a part of a
particular designated event; or
(b) the whole or a part of a
particular designated series of events;
if, and only if, the first national broadcaster offers to
make an arrangement (whatever its terms or form) which in substance gives the
other national broadcaster the right to televise live the whole or the part of
the event or series, as the case may be.
(2) In determining whether an arrangement is
covered by subsection (1), regard must be had to the practical effect of
the arrangement.
146N
Offers to transfer rights to televise live events
(1) This section applies to an offer by a
national broadcaster to transfer to the other national broadcaster the right to
televise live:
(a) the whole or a part of a
particular designated event; or
(b) the whole or a part of a
particular designated series of events.
(2) The offer
must be in writing.
(3) The offer must be given to the Managing
Director of the other national broadcaster.
(4) The offer must be open for acceptance by
the other national broadcaster throughout the period:
(a) beginning when the offer is given
to the Managing Director of the other national broadcaster; and
(b) ending immediately before the
start of the event or series.
(5) The period referred to in subsection (4)
must not be shorter than 7 days.
(6) The offer must require that the
consideration to be given by the other national broadcaster is to consist of a
promise to pay $1, if and when demanded by the national broadcaster who made
the offer.
146P
Contracts to acquire rights to televise live events must authorise the transfer
of the rights
(1) A national broadcaster must not enter
into a contract under which the national broadcaster:
(a) acquires; or
(b) will be entitled to acquire
(whether on the fulfilment of a condition or otherwise);
rights to televise live the whole, or a substantial
proportion, of a designated event, or of a designated series of events, unless
the contract authorises the national broadcaster to make an offer of the kind
referred to in section 146L.
(2) A contract entered into in contravention
of subsection (1) is void.
146Q
Simultaneous events in a series
(1) For the purposes of this Division, if:
(a) a national broadcaster has the
right to televise live, in a coverage area, a particular designated series of
events; and
(b) during a particular period, 2 or
more events in that series (the simultaneous events) wholly or
partly overlap; and
(c) during that period, the national
broadcaster televises live in that area one of those simultaneous events;
the national broadcaster is taken, during that period, to
have televised live in that area the remainder of those simultaneous events.
Note: For delayed televising in the Central‑Western
time zones, see section 146R.
(2) For the purposes of paragraph (1)(c),
a national broadcaster is taken to have televised live the whole of an event if
the broadcaster televises live all but an insubstantial proportion of the
event.
Note 1: For example, in the case of the ABC,
interruptions by way of news breaks, program promotions, announcements or brief
crosses to other live events would amount to an insubstantial proportion of the
event being televised.
Note 2: For example, in the case of the SBS,
interruptions by way of commercial breaks, news breaks, program promotions,
announcements or brief crosses to other live events would amount to an
insubstantial proportion of the event being televised.
(3) If a national broadcaster has a right to
televise live a substantial proportion of a designated series of events, this
section has effect, in relation to the national broadcaster, as if that
proportion were a designated series of events in its own right.
146R
Delayed televising in the Central‑Western time zones
(1) For the purposes of paragraph 146L(2)(c),
if:
(a) a national broadcaster televises,
in a coverage area:
(i) a designated event or
a designated series of events; or
(ii) a part of a designated
event or a part of a designated series of events; and
(b) the event or series is eligible
for delayed televising in the Central‑Western time zones; and
(c) apart from this subsection, the
televising mentioned in paragraph (a) is not live; and
(d) the coverage area is wholly or
substantially within a particular Central‑Western time zone; and
(e) assuming the event or series, or
the part of the event or series, as the case may be, had been televised live in
Sydney—the event or series, or the part of the event or series, as the case may
be, is televised, as mentioned in paragraph (a), not later than the local
time in that zone that is equivalent to the time at which the event or series,
or the part of the event or series, as the case may be, was televised live in
Sydney;
the event or series, or the part of the event or series,
as the case may be, is taken to be televised live by the national broadcaster
in the coverage area.
(2) For the purposes of paragraph 146Q(1)(c),
if:
(a) a national broadcaster has the
right to televise live, in a coverage area, a particular designated series of
events; and
(b) during a particular period, 2 or
more events in that series wholly or partly overlap; and
(c) the broadcaster televises in the
coverage area one of those events; and
(d) the series is eligible for delayed
televising in the Central‑Western time zones; and
(e) apart from this subsection, the
televising mentioned in paragraph (c) is not live; and
(f) the coverage area is wholly or
substantially within a particular Central‑Western time zone; and
(g) assuming the event had been
televised live in Sydney—the event is televised, as mentioned in paragraph (c),
not later than the local time in that zone that is equivalent to the time at
which the event was televised live in Sydney;
the event is taken to be televised live by the national
broadcaster in the coverage area during that period.
(3) For the purposes of subsections (1)
and (2), a national broadcaster is taken to have televised live the whole of an
event, or the whole of a series of events, if the broadcaster televises all but
an insubstantial proportion of the event or series, as the case may be.
Note 1: For example, in the case of the ABC,
interruptions by way of news breaks, program promotions, announcements or brief
crosses to other live events would amount to an insubstantial proportion of the
event or series being televised.
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.
Division 4—Review of anti‑hoarding provisions
146S Review
of anti‑hoarding provisions
(1) Within 2 years after the commencement of
this Part, the Minister must cause to be conducted a review of the
effectiveness of the anti‑hoarding provisions enacted by this Part.
(2) The Minister must cause a report to be
prepared of the review under subsection (1).
(3) The Minister must cause copies of the
report to be laid before each House of the Parliament within 15 sitting days of
that House after the completion of the preparation of the report.
Part 11—Complaints to the ACMA
Division 1—Complaints relating to action under licences and class
licences
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.
149
Investigation of complaints by the ACMA
(1) Subject to subsection (2), the ACMA
must investigate the complaint.
(2) The ACMA
need not investigate the complaint if it is satisfied that:
(a) the complaint is frivolous or
vexatious or was not made in good faith; or
(b) in
the case of a complaint referred to in section 147—the complaint does not
relate to:
(i) an
offence against this Act or the regulations; or
(ia) a breach of a civil
penalty provision; or
(ii) a breach of a
condition of a licence.
(3) The ACMA must notify the complainant of
the results of such an investigation.
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
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.
151
Investigation of complaints relating to the ABC or SBS by the ACMA
(1) Subject to subsection (2), the ACMA
must investigate the complaint.
(2) The ACMA need not investigate the
complaint if it is satisfied that:
(a) the complaint is frivolous or
vexatious or was not made in good faith; or
(b) the complaint is not relevant to a
code of practice developed by the Corporation.
152
Action by ACMA where complaint justified
(1) If, having
investigated a complaint, the ACMA is satisfied that:
(a) the complaint was justified; and
(b) the
ACMA should take action under this section to encourage the Australian
Broadcasting Corporation or the Special Broadcasting Service Corporation to
comply with the relevant code of practice;
the ACMA may, by notice in writing given to the Australian
Broadcasting Corporation or the Special Broadcasting Service Corporation,
recommend that it take action to comply with the relevant code of practice and
take such other action in relation to the complaint as is specified in the
notice.
(2) That other action may include
broadcasting or otherwise publishing an apology or retraction.
(3) The ACMA must notify the complainant of
the results of such an investigation.
153 ACMA
may report to Minister on results of recommendation
(1) If:
(a) the ACMA has made a recommendation
to the Australian Broadcasting Corporation or the Special Broadcasting Service
Corporation under section 152; and
(b) the Australian Broadcasting
Corporation or the Special Broadcasting Service Corporation, as the case may
be, does 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.
Part 13—Information gathering by the ACMA
Division 1—Introduction
168
Obtaining of information by the ACMA
(1) In informing itself on any matter
relevant to its broadcasting, content and datacasting functions (as defined in
the Australian Communications and Media Authority Act 2005), the ACMA:
(a) may consult with such persons,
bodies and groups as it thinks fit, and may form consultative committees for
that purpose; and
(b) may conduct investigations and
hold hearings; and
(c) may otherwise inform itself in any
manner it thinks fit.
(2) Subject to any directions by the Minister
under this Part, the procedure that the ACMA adopts in informing itself on any
matter relevant to those functions is to be that which the ACMA considers:
(a) will be the quickest and most
economical in the circumstances; and
(b) will also promote the due
administration of this Act.
169
Decision‑making by the ACMA not limited to matters discovered by
investigation or hearing
In making a decision on any matter
relating to the functions referred to in subsection 168(1), the ACMA is not
limited to a consideration of material made available through an investigation
or hearing conducted in relation to the matter, but may take into account such
other matters as it considers relevant, including the knowledge and experience
of the members.
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.
173
Notice requiring appearance for examination
For the
purposes of an investigation, the ACMA may give a notice in writing to a person
summoning the person:
(a) to attend before a delegate of the
ACMA named in the notice to produce documents or to answer questions; or
(b) to provide documents or other
information to the ACMA;
relevant to the subject matter of the investigation.
174
Examination on oath or affirmation
(1) If a
person is summoned to attend before a delegate of the ACMA, the delegate may
examine that person on oath or affirmation and, for that purpose:
(a) may require the person to take an
oath or make an affirmation; and
(b) may administer an oath or
affirmation to the person.
(2) The oath or affirmation is to be an oath
or affirmation that the statements the person will make will be true to the
best of the person’s knowledge or belief.
(3) The delegate may require the person to
answer a question that is put to the person at an examination and that is
relevant to a matter that the ACMA is investigating or is to investigate.
175
Examination to take place in private
The examination of a person for the
purposes of an investigation must be conducted in private, but the person is
entitled to have an adviser present at the examination.
176
Record to be made of examination
(1) If a person is examined by a delegate of
the ACMA, a record must be made of the examination and the person is entitled
to be given a written copy of the record.
(2) If the record of the examination of a
person is made in electronic form, the person is, if the person so requests, to
be given a copy of the record in that form.
177
Production of documents for inspection
The ACMA
may, by notice in writing given to a person, require the person:
(a) to make available for inspection
by a member of the staff of the ACMA any documents in the possession of the
person that may contain information relevant to the subject matter of an
investigation; and
(b) to permit that member to make
copies of any such documents.
178
Report on investigation
(1) The ACMA may prepare a report on an
investigation, and must prepare a report on an investigation conducted at the
direction of the Minister and give a copy of each report conducted at the
direction of the Minister to the Minister.
(2) If a report on an investigation relates
to conduct that could constitute an offence under this Act or another law of
the Commonwealth, the ACMA may give a copy of the report or of a part of the
report to the Director of Public Prosecutions.
179
Publication of report
(1) Except in the case of a report prepared
as a result of an investigation directed by the Minister, the ACMA may cause a
copy of a report on an investigation to be published.
(2) The Minister may direct the ACMA to
publish a report on an investigation directed by the Minister.
(3) The ACMA is not required to publish, or
to disclose to a person to whose affairs it relates, a report or part of a
report if the publication or disclosure would:
(a) disclose matter of a confidential
character; or
(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.
Division 3—Hearings
182
Power to hold hearings
The ACMA may hold hearings for the
purposes of the performance or exercise of any of its broadcasting, content and
datacasting functions (as defined in the Australian Communications and Media
Authority Act 2005) and related powers.
183
Minister may direct ACMA to hold a hearing
If the Minister is satisfied that the ACMA
should, in the interests of the due administration of this Act, hold a hearing
in relation to any matter, the Minister may direct the ACMA in writing to hold
a hearing in relation to the matter.
184
Procedure for conduct of hearings
(1) Subject to this Division, the procedure
for the conduct of a hearing is within the discretion of the ACMA.
(2) The ACMA may give directions, either
generally or in relation to a particular case, for the procedures to be
followed in relation to the conduct of hearings.
185 ACMA
may direct holding of conference
(1) The ACMA may, at any stage of a hearing,
direct persons participating or seeking to participate in the hearing to attend
a conference before a member of the ACMA or a member of the staff of the ACMA
for the purpose of:
(a) discussing matters relevant to the
hearing; or
(b) clarifying any of the matters to
be dealt with by the hearing; or
(c) resolving any differences between
the persons participating in the hearing.
(2) If a person who is directed to
participate in a conference in relation to a hearing fails, without reasonable
excuse, to attend the conference, the person may be excluded from participation
or further participation in the hearing.
186
Hearings to be informal, quick and economical
(1) A hearing
is to be conducted:
(a) with as little technicality and
formality; and
(b) as quickly and economically;
as the requirements of this Act and a proper consideration
of the matters before the ACMA permit.
(2) In holding a hearing, the ACMA is not
bound by the rules of evidence.
187 Hearings
to be in public except in exceptional cases
(1) Subject to subsection (2), a hearing
conducted by the ACMA must take place in public.
(2) A hearing or a part of a hearing may be
conducted in private if:
(a) evidence that may be given, or a
matter that may arise, during the hearing or the part of the hearing is of a
confidential nature; or
(b) the ACMA is satisfied that hearing
a matter or part of a matter in public would not be conducive to the due
administration of this Act.
188
Public notice of hearings
If the ACMA is to conduct a hearing in
public, the ACMA must give reasonable public notice of the conduct of the
hearing.
189
Confidential material not to be published
If a hearing or part of a hearing takes
place in public, the ACMA may order that evidence or other material presented
to the hearing, or material in a submission lodged with the ACMA under section 196,
that is, in the opinion of the ACMA, of a confidential nature not be published,
or that its disclosure be restricted as directed by the ACMA.
190
Directions as to private hearings
If a
hearing or part of a hearing takes place in private, the ACMA:
(a) must give directions as to the
persons who may be present at the hearing or the part of the hearing; and
(b) may give directions restricting
the disclosure of evidence or other material presented at the hearing or the
part of the hearing.
191
Constitution of ACMA for conduct of hearings
The ACMA is to be constituted for the
purposes of a hearing by a panel consisting of such members as the Chair
directs.
192
Presiding member
A panel conducting a hearing is to be
presided over by the Chair or, if the Chair is not a member of the panel, by
such member of the panel as the Chair directs.
193
Reconstitution of hearing panel
(1) If, during the course of a hearing:
(a) it appears to the Chair that,
because of the importance of the matters in issue the panel conducting a
hearing should be reconstituted by the addition to that panel of one or more
additional members; or
(b) a member of the panel conducting
the hearing is unable to continue with the hearing;
the Chair may direct that the panel be reconstituted.
(2) All proceedings in the hearing that have
taken place before the reconstitution of the panel are, unless the panel as
reconstituted otherwise directs, to be taken to have taken place before the
reconstituted panel.
194
Exercise of powers in relation to conduct of hearing
The
powers of the ACMA in relation to the conduct of a particular hearing may be
exercised:
(a) by the panel conducting that
hearing; or
(b) by the Chair; or
(c) by a member of the ACMA authorised
by the Chair to exercise those powers in relation to the hearing.
195
Summons to give evidence or produce documents
(1) The member presiding at a hearing may:
(a) by notice in writing given to a
person, summon that person to appear before the ACMA as constituted for the
purposes of the hearing to give evidence in relation to the subject matter of
the hearing or to produce to the ACMA such documents as are specified in the
notice, or to do both; or
(b) require
a person appearing to give evidence either to take an oath or to make an
affirmation; or
(c) administer an oath or affirmation
to a person so appearing.
(2) The oath or affirmation to be taken or made
by a person is an oath or affirmation that the evidence the person will give
will be true.
196
Written submissions may be made to hearing
A person may lodge with the ACMA any
submissions in writing that the person wishes the ACMA to take into account in
relation to the subject matter of the hearing.
197
Evidence and submissions to be taken into account by ACMA
The ACMA must take into account:
(a) evidence given, or a submission
made, to it at a hearing; or
(b) a submission lodged with it in relation
to the hearing;
in making a decision on a matter to which the evidence or
submission relates.
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.
Division 4—General
200
Protection of members and persons giving evidence
(1) A person who is a member of the panel
conducting a hearing has in the performance of his or her duties as a member of
the panel the same protection and immunity as a Justice of the High Court.
(2) A lawyer appearing before the ACMA at a
hearing as the representative of another person has the same protection and
immunity as a barrister has in appearing for a party in proceedings in the High
Court.
(3) A person who is summoned to appear at a
hearing, or a person who gives evidence or produces documents at an
investigation or a hearing, has the same protection as a witness in a
proceeding in the High Court.
201
Protection of panel conducting hearing
A person must not:
(a) obstruct a member of a panel
conducting a hearing; or
(b) disrupt a hearing; or
(c) do any other act or thing that
would, if the hearing were a proceeding in the High Court, constitute a
contempt in the face of that Court.
Penalty: Imprisonment for one year.
202
Non‑compliance with requirement to give evidence
(1) A person required to give evidence or to
produce documents at a hearing must not:
(a) fail to attend as required by the
notice; or
(b) fail to appear and report from day
to day unless excused or released from further attendance.
Penalty: Imprisonment for one year.
(1A) A person
required to give evidence or to produce documents at a hearing must not:
(a) fail to attend as required by the
notice; or
(b) fail to appear and report from day
to day unless excused or released from further attendance.
(1B) Subsection (1A) is a civil penalty
provision.
(2) A person
required to answer a question, to give evidence or to produce documents under
this Part must not:
(a) when required to take an oath or
make an affirmation, refuse or fail to take the oath or make the affirmation;
or
(b) refuse
or fail to answer a question that the person is required to answer; or
(c) refuse or fail to produce a
document that the person is required to produce.
Penalty: Imprisonment for one year.
(2AA) A person
required to answer a question, to give evidence or to produce documents under
this Part must not:
(a) when required to take an oath or
make an affirmation, refuse or fail to take the oath or make the affirmation;
or
(b) refuse
or fail to answer a question that the person is required to answer; or
(c) refuse or fail to produce a
document that the person is required to produce.
(2AB) Subsection (2AA) is a civil penalty
provision.
(2A) Subsections (1), (1A), (2) and (2AA)
do not apply if the person has a reasonable excuse.
Note: In criminal proceedings, a defendant bears an
evidential burden in relation to the matter in subsection (2A) (see
subsection 13.3(3) of the Criminal Code).
(2B) A person who wishes to rely on subsection (2A)
in proceedings for a civil penalty order bears an evidential burden in relation
to that matter.
(3) For the avoidance of doubt, it is
declared that it is a reasonable excuse for a person to refuse to answer a
question or to produce a document if the answer to the question or the
production of the document would tend to incriminate the person.
(4) It is a reasonable excuse for a person to
refuse to answer a question or to produce a document if:
(a) the person is a journalist; and
(b) the answer to the question or the
production of the document would tend to disclose the identity of a person who
supplied information in confidence to the journalist; and
(c) the information has been used for
the purposes of:
(i) a television or radio
program; or
(ii) datacasting content.
(5) For the purposes of this section,
journalist means a person engaged in the profession or practice of
reporting for, photographing, editing, recording or making:
(a) television or radio programs; or
(b) datacasting content;
of a news, current affairs, information or documentary
character.
203
Proceedings for defamation not to lie
No action
or proceeding, whether civil or criminal, lies:
(a) against the Commonwealth, the
Minister, the ACMA, a member of the staff of the ACMA, a person who is a member
of the panel constituting a hearing or a person acting with the authority of
the ACMA in respect of the printing or publishing of a report of an
investigation or a transcript of proceedings at a hearing; or
(b) in respect of the publication, by
any means, of a fair and accurate report of proceedings at a hearing.
Part 14—Appeals to the Administrative Appeals Tribunal
204
Appeals to the Administrative Appeals Tribunal
Subject to this section, an application
may be made to the Administrative Appeals Tribunal for a review of a decision
set out in column 1 of the table made under the provision of this Act set out
in column 2, but such an application may only be made by the person described
in column 3.
TABLE
|
Column 1
Decision
|
Column 2
Provision
|
Column 3
Person who may apply
|
|
To make a determination under subsection 35D(2) in
relation to a commercial radio broadcasting licence
|
Section 35D
|
The licensee
|
|
Refusal to allocate an additional licence
|
Section 38A
|
The licensee
|
|
Refusal to allocate an additional licence
|
Section 38B
|
The applicant
|
|
Refusal to allocate licence
|
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
|
|
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
|
|
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
|
|
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
|
|
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
|
|
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
|
|
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
|
205
Notification of decisions to include notification of reasons and appeal rights
If the ACMA makes a decision that is
reviewable under section 204, the ACMA is to include in the document by
which the decision is notified:
(a) a statement setting out the
reasons for the decision; and
(b) a statement to the effect that an
application may be made to the Administrative Appeals Tribunal for a review of
the decision.
Part 14A—Accounts and payment of licence fees
205A Definitions
In this Part:
channel A datacasting transmitter licence has
the same meaning as in the Radiocommunications Act 1992.
gross earnings has the same meaning:
(a) in relation to a commercial radio
broadcasting licence—as in the Radio Licence Fees Act 1964; and
(b) in relation to a commercial
television broadcasting licence—as in the Television Licence Fees Act 1964;
and
(c) in relation to a channel A
datacasting transmitter licence—as in the Datacasting Transmitter Licence
Fees Act 2006.
licence fee means a fee imposed under:
(a) section 5 of the Radio
Licence Fees Act 1964; or
(b) section 5 of the Television
Licence Fees Act 1964; or
(c) section 7 of the Datacasting
Transmitter Licence Fees Act 2006.
radiocommunications transmitter has the same
meaning as in the Radiocommunications Act 1992.
205B Broadcasting
licensees to keep accounts
(1) A commercial television broadcasting
licensee or a commercial radio broadcasting licensee must:
(a) keep and maintain, in a recognised
business or commercial form, financial accounts in relation to the service or
services provided under the licence; and
(b) make those accounts available for
inspection by the ACMA or an authorised officer when requested to do so; and
(c) within 6 months after 30 June
in each year, give the ACMA:
(i) an audited balance‑sheet
and an audited profit and loss account, in a form approved by the ACMA, in
relation to the service or services provided under the licence for the year
ending on that 30 June; and
(ii) a statutory declaration
stating the gross earnings in relation to the licence during that year; and
(d) keep such records in respect of
the service or services provided under the licence as the ACMA directs and give
copies of those records to the ACMA when requested to do so.
(2) A licensee may, with the permission of
the ACMA, adopt an accounting period which is a period of 12 months ending on a
day other than 30 June.
(3) If a licensee adopts such an accounting
period, paragraph (1)(c) has effect as if:
(a) the reference in that paragraph to
6 months after 30 June were a reference to:
(i) if 6 months after the
end of the accounting period does not include 31 December—6 months after
the end of the accounting period; or
(ii) if 6 months after the
end of the accounting period includes 31 December—the period starting
immediately after the end of the accounting period and ending on that 31 December;
and
(b) a reference in that paragraph to
the year ending on 30 June were a reference to the year ending on the last
day of that accounting period.
(4) The declaration referred to in subparagraph (1)(c)(ii)
must be made by the chief executive officer or secretary of the licensee.
(5) In this section:
authorised officer means a member, or a
member of the staff of the ACMA, authorised by the ACMA in writing for the
purposes of this section.
Note: For enforcement of this section, see Division 3
of Part 10 of this Act and paragraphs 7(1)(ia) and 8(1)(ha) of Schedule 2.
205BA
Datacasting transmitter licensees to keep accounts
(1) A channel
A datacasting transmitter licensee must:
(a) keep and maintain, in a recognised
business or commercial form, financial accounts in relation to the transmission
of matter by radiocommunications transmitters operating under the
licence; and
(b) make those accounts available for
inspection by the ACMA or an authorised officer when requested to do so; and
(c) within 6 months after the end of
each financial year, give the ACMA:
(i) an audited balance‑sheet
and an audited profit and loss account, in a form approved by the ACMA, in
relation to the transmission of matter by radiocommunications transmitters
operating under the licence during the financial year; and
(ii) a statutory
declaration stating the gross earnings in relation to the licence during the
financial year; and
(d) keep such records in relation to
the operation of radiocommunications transmitters under the licence as
the ACMA directs, and give copies of those records to the ACMA when requested
to do so.
(2) The declaration referred to in subparagraph (1)(c)(ii)
must be made by the chief executive officer or secretary of the licensee.
Nominated datacaster declarations
(3) Clause 46 of Schedule 6 does
not apply to this section.
Definition
(4) In this section:
authorised officer means a member, or a
member of the staff, of the ACMA, authorised by the ACMA in writing for the
purposes of this section.
Note: For enforcement of this section, see paragraph
109A(1)(bb) of the Radiocommunications Act 1992.
205C
Payment of licence fees
(1) If a commercial television broadcasting
licensee, a commercial radio broadcasting licensee or a channel A datacasting
transmitter licensee pays an amount that the licensee believes is the licence
fee that is due and payable in relation to the licence, the licensee must, in a
notice accompanying the payment, inform the ACMA, in a form approved by the ACMA,
of the manner of working out the amount paid.
(2) If:
(a) the ACMA, having regard to the
documents given to it under paragraph 205B(1)(c) or 205BA(1)(c), works out the
amount of the licence fee that is due and payable in relation to the licence;
and
(b) the amount worked out is not the
same as the amount paid;
the ACMA must give the licensee, as soon as practicable, a
notice in writing:
(c) specifying the amount worked out;
and
(d) setting out details of how the
amount was worked out; and
(e) if the amount paid is more than
the amount worked out, specifying the amount overpaid; and
(f) if the amount paid is less than
the amount worked out, specifying the amount unpaid; and
(g) if the ACMA is satisfied that the
licensee deliberately miscalculated the amount of the licence fee—stating that
it is so satisfied.
(3) If the notice given to the licensee under
subsection (2) specifies an amount overpaid, the ACMA must, within 21 days
after the day the notice was issued, arrange for the amount to be refunded to
the licensee.
205D
Penalty for unpaid licence fees
(1) If an amount of licence fee remains
unpaid after the due date, the following additional fees are due and payable by
the licensee as penalties:
(a) an additional fee at the rate of
20% per annum on the amount unpaid, worked out from the due date;
(b) an additional fee of $1,500;
unless subsection (2) or (3) applies in relation to
the amount unpaid.
(2) If:
(a) an amount of licence fee is
specified in a notice under paragraph 205C(2)(f) as an amount unpaid; and
(b) the notice does not contain a
statement that the ACMA is satisfied that the licensee deliberately
miscalculated the amount of the licence fee; and
(c) the amount unpaid is not paid
within 21 days after the day the notice was issued;
then:
(d) this subsection applies in
relation to the amount unpaid; and
(e) the following additional fees are
due and payable by the licensee as penalties:
(i) an additional fee at
the rate of 20% per annum on the amount unpaid, worked out from the day the
notice was issued;
(ii) an additional fee of
$1,500.
(3) If:
(a) an amount of licence fee is
specified in a notice under paragraph 205C(2)(f) as an amount unpaid; and
(b) the notice does not contain a
statement that the ACMA is satisfied that the licensee deliberately
miscalculated the amount of the licence fee; and
(c) the amount unpaid is paid within
21 days after the day the notice was issued;
then:
(d) this subsection applies in
relation to the amount unpaid; and
(e) no additional fee is due and
payable by the licensee as a penalty.
(4) If an additional fee is due and payable
by the licensee under subsection (1) or (2) in relation to an amount of
licence fee, or such an additional fee has been paid, and an authorised person:
(a) is satisfied that:
(i) the circumstances that
contributed to the delay in payment of the amount were not caused directly or
indirectly by an act or omission of the licensee; and
(ii) the licensee has taken
reasonable action to mitigate, or mitigate the effects of, those circumstances;
or
(b) is
satisfied that:
(i) the circumstances that
contributed to the delay in payment of the amount were caused directly or
indirectly by an act or omission of the licensee; and
(ii) the licensee has taken
reasonable action to mitigate, or mitigate the effects of, those circumstances;
and
(iii) having regard to the
nature of those circumstances, it would be reasonable to remit the additional
fee or part of that fee; or
(c) is satisfied that there are
special circumstances that make it reasonable to remit the additional fee or
part of that fee;
the authorised person may remit the additional fee or part
of that fee.
(5) If:
(a) an authorised person remits the
additional fee or part of that fee; and
(b) the licensee has paid an amount of
that fee;
the authorised person must, within 21 days after remitting
that fee or part of that fee, arrange for so much of the amount as is remitted
to be refunded to the licensee.
(6) Despite subsections (1) and (2), an
amount of unpaid licence fee may be recovered immediately after the due date in
a court of competent jurisdiction as a debt due to the Commonwealth.
(6A) An additional fee payable under subsection (1)
or (2) may be recovered in a court of competent jurisdiction as a debt due to
the Commonwealth.
(7) If:
(a) judgment is entered or given in a
court for the payment of an amount of unpaid licence fee; and
(b) interest is payable on the judgment
debt; and
(c) an additional fee is payable in
respect of the unpaid licence fee under paragraph (1)(a) or subparagraph (2)(e)(i);
the amount of the additional fee that would, but for the
operation of this subsection, be so payable is reduced by the amount of the
interest payable on that judgment debt.
(8) If:
(a) judgment is entered or given in a
court for the payment of an amount that includes an amount of unpaid licence
fee; and
(b) interest is payable on the
judgment debt; and
(c) an additional fee is be payable in
respect of the unpaid licence fee under paragraph (1)(a) or subparagraph (2)(e)(i);
the amount of the additional fee that would, but for the
operation of this subsection, be so payable is reduced by an amount worked out
using the formula:
where:
interest on judgment debt means the dollar
amount representing the amount of interest payable on the judgment debt at the
time the debt is paid.
licence fee component of judgment debt means
the amount determined by the court to be the amount of licence fee unpaid.
(9) In this
section:
authorised person
means:
(a) the Minister; or
(b) an officer authorised by the
Minister in writing for the purposes of this section.
due date, in relation to a licence fee, means
the day on which the fee becomes payable under the Radio Licence Fees Act
1964, the Television Licence Fees Act 1964 or the Datacasting
Transmitter Licence Fees Act 2006.
Part 14B—Civil penalties
Division 1—Ancillary contravention of civil penalty provision
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.
Division 2—Civil penalty orders
205EA
Simplified outline
The following is a simplified outline of
this Division:
• Pecuniary penalties are
payable for contraventions of civil penalty provisions.
205F
Civil penalty orders
(1) If the Federal Court is satisfied that a
person has contravened a civil penalty provision, the Federal Court may order
the person to pay the Commonwealth a pecuniary penalty.
(2) An order under subsection (1) is to
be known as a civil penalty order.
Determining amount of pecuniary penalty
(3) In determining the pecuniary penalty, the
Federal Court must have regard to all relevant matters, including:
(a) the nature and extent of the
contravention; and
(b) the nature and extent of any loss
or damage suffered as a result of the contravention; and
(c) the circumstances in which the contravention
took place; and
(d) whether the person has previously
been found by a court in proceedings under this Act to have engaged in any
similar conduct.
Maximum pecuniary penalty
(4) The pecuniary penalty payable by a person
in respect of a contravention of a civil penalty provision (other than
subsection 205E(1)) must not exceed the maximum pecuniary penalty that could
have been imposed on the person if the person had been convicted of an offence
against the provision of this Act that corresponds to the civil penalty
provision.
(5) The pecuniary penalty payable by a person
in respect of a contravention of subsection 205E(1) that relates to another
civil penalty provision must not exceed the maximum pecuniary penalty that
could have been imposed on the person if the person had been convicted of an
offence against the provision of this Act that corresponds to the other civil
penalty provision.
Penalties for continuing contraventions
(6) If:
(a) subsection 121FG(5), 121FHB(3),
121FJA(3) or 121FJD(3), section 136F or subsection 138A(3), 140A(8) or
142A(3) applies to a contravention of a civil penalty provision; and
(b) civil penalty orders are made
against a person in respect of 2 or more contraventions of such a provision;
the court may impose one penalty in respect of both or all
of those contraventions, but that penalty must not exceed the sum of the
maximum penalties that could be imposed if a separate penalty were imposed in
respect of each contravention.
Conduct contravening more than one civil penalty
provision
(7) If conduct constitutes a contravention of
2 or more civil penalty provisions, proceedings may be instituted under this
section against a person in relation to the contravention of any one or more of
those provisions. However, the person is not liable to more than one pecuniary
penalty under this section in respect of the same conduct.
Civil enforcement of penalty
(8) A pecuniary penalty is a civil debt
payable to the Commonwealth. The Commonwealth may enforce the civil penalty
order as if it were an order made in civil proceedings against the person to
recover a debt due by the person. The debt arising from the order is taken to
be a judgment debt.
205G
Who may apply for a civil penalty order
(1) Only the ACMA may apply for a civil penalty
order.
(2) Subsection (1) does not exclude the
operation of the Director of Public Prosecutions Act 1983.
205H 2
or more proceedings may be heard together
The Federal Court may direct that 2 or
more proceedings for civil penalty orders are to be heard together.
205J
Time limit for application for an order
Proceedings for a civil penalty order
may be started no later than 6 years after the contravention.
205K
Civil evidence and procedure rules for civil penalty orders
The Federal Court must apply the rules
of evidence and procedure for civil matters when hearing proceedings for a
civil penalty order.
205L
Civil proceedings after criminal proceedings
The Federal Court must not make a civil
penalty order against a person for a contravention of a civil penalty provision
if the person has been convicted of an offence constituted by conduct that is
substantially the same as the conduct constituting the contravention.
205M
Criminal proceedings during civil proceedings
(1) Proceedings for a civil penalty order
against a person for a contravention of a civil penalty provision are stayed
if:
(a) criminal proceedings are started
or have already been started against the person for an offence; and
(b) the offence is constituted by
conduct that is substantially the same as the conduct alleged to constitute
the contravention.
(2) The proceedings for the order may be
resumed if the person is not convicted of the offence. Otherwise, the
proceedings for the order are dismissed.
205N
Criminal proceedings after civil proceedings
Criminal proceedings may be started
against a person for conduct that is substantially the same as conduct
constituting a contravention of a civil penalty provision regardless of whether
a civil penalty order has been made against the person.
205P
Evidence given in proceedings for a civil penalty order not admissible in
criminal proceedings
Evidence of information given, or
evidence of production of documents, by an individual is not admissible in
criminal proceedings against the individual if:
(a) the individual previously gave the
evidence or produced the documents in proceedings for a civil penalty order
against the individual for a contravention of a civil penalty provision
(whether or not the order was made); and
(b) the conduct alleged to constitute
the offence is substantially the same as the conduct that was claimed to
constitute the contravention.
However, this does not apply to a criminal proceeding in
respect of the falsity of the evidence given by the individual in the
proceedings for the civil penalty order.
205PAA
Mistake of fact
(1) A person is not liable to have a civil
penalty order made against the person for a contravention of a civil penalty
provision (other than subsection 202(1A) or (2AA)) if:
(a) at or before the time of the
conduct constituting the contravention, the person:
(i) considered whether or
not facts existed; and
(ii) was under a mistaken
but reasonable belief about those facts; and
(b) had those facts existed, the
conduct would not have constituted a contravention of the civil penalty
provision.
(2) For the purposes of subsection (1),
a person may be regarded as having considered whether or not facts existed if:
(a) the person had considered, on a
previous occasion, whether those facts existed in the circumstances surrounding
that occasion; and
(b) the person honestly and reasonably
believed that the circumstances surrounding the present occasion were the same,
or substantially the same, as those surrounding the previous occasion.
(3) A person who wishes to rely on subsection (1)
or (2) in proceedings for a civil penalty order bears an evidential burden in
relation to that matter.
Part 14C—Injunctions
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 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 61AH or
61AMB or subsection 121FG(3) or section 136A, 136B, 136C, 136D or 136E or
subclause 49(3) of Schedule 6, the Federal Court may, on the application
of the ACMA, grant an injunction:
(a) restraining the person from
engaging in the conduct; and
(b) if, in the court’s opinion, it is
desirable to do so—requiring the person to do something.
205R
Interim injunctions
Grant of interim injunction
(1) If an application is made to the Federal
Court for an injunction under section 205Q, the court may, before considering
the application, grant an interim injunction restraining a person from engaging
in conduct of a kind referred to in that section.
No undertakings as to damages
(2) The Federal Court is not to require an
applicant for an injunction under section 205Q, as a condition of granting
an interim injunction, to give any undertakings as to damages.
205S
Discharge etc. of injunctions
The Federal Court may discharge or vary
an injunction granted under this Part.
205T
Certain limits on granting injunctions not to apply
The power of the Federal Court under
this Part to grant an injunction restraining a person from engaging in conduct
of a particular kind may be exercised:
(a) if the court is satisfied that the
person has engaged in conduct of that kind—whether or not it appears to the
court that the person intends to engage again, or to continue to engage, in
conduct of that kind; or
(b) if it appears to the court that,
if an injunction is not granted, it is likely that the person will engage in
conduct of that kind—whether or not the person has previously engaged in
conduct of that kind and whether or not there is an imminent danger of
substantial damage to any person if the person engages in conduct of that kind.
205U
Other powers of the Federal Court unaffected
The powers conferred on the Federal
Court under this Part are in addition to, and not instead of, any other powers
of the court, whether conferred by this Act or otherwise.
Part 14D—Enforceable undertakings
205V
Simplified outline
The following is a simplified outline of
this Part:
• A person may give the ACMA
an enforceable undertaking about compliance with this Act or a registered code
of practice.
205W
Acceptance of undertakings
(1) The ACMA may accept any of the following
undertakings:
(a) a written undertaking given by a
person that the person will, in order to comply with this Act, take specified
action;
(b) a written undertaking given by a
person that the person will, in order to comply with this Act, refrain from
taking specified action;
(c) a written undertaking given by a
person that the person will take specified action directed towards ensuring
that the person does not contravene this Act, or is unlikely to contravene this
Act, in the future;
(d) a written undertaking given by a
person that the person will, in order to comply with a registered code of
practice, take specified action;
(e) a written undertaking given by a
person that the person will, in order to comply with a registered code of
practice, refrain from taking specified action;
(f) a written undertaking given by a
person that the person will take specified action directed towards ensuring
that the person does not contravene a registered code of practice, or is
unlikely to contravene a registered code of practice, in the future.
(2) The undertaking must be expressed to be
an undertaking under this section.
(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 Internet site.
205X
Enforcement of undertakings
(1) If:
(a) a person has given an undertaking
under section 205W; and
(b) the undertaking has not been
withdrawn or cancelled; and
(c) the ACMA considers that the person
has breached the undertaking;
the ACMA may apply to the Federal Court for an order under
subsection (2).
(2) If the Federal Court is satisfied that
the person has breached the undertaking, the court may make any or all of the
following orders:
(a) an order directing the person to
comply with the undertaking;
(b) an order directing the person to
pay to the ACMA, on behalf of the Commonwealth, an amount up to the amount of
any financial benefit that the person has obtained directly or indirectly and
that is reasonably attributable to the breach;
(c) any order that the court considers
appropriate directing the person to compensate any other person who has
suffered loss or damage as a result of the breach;
(d) any other order that the court
considers appropriate.
Part 14E—Infringement notices
205XAA
Simplified outline
The following is a simplified outline of
this Part:
• This Part sets up a system
of infringement notices for contraventions of a designated infringement notice
provision as an alternative to the institution of court proceedings.
205XA
Formal warning
If an authorised infringement notice
officer has reasonable grounds to believe that a person has contravened a
designated infringement notice provision, the officer may, by written notice
given to the person:
(a) inform the person accordingly; and
(b) warn the person that the officer,
or another authorised infringement notice officer, may be entitled to give the
person an infringement notice relating to the contravention.
Note: See subsection 205Y(4).
205Y
When an infringement notice can be given
(1) If an authorised infringement notice
officer has reasonable grounds to believe that a person has contravened a
designated infringement notice provision, the officer may give the person an
infringement notice relating to the contravention.
(2) The infringement notice must be given
within 12 months after the day on which the contravention is alleged to have
taken place.
(3) Subsection (1) has effect subject to
subsection (4).
(4) An authorised infringement notice officer
must not give a person an infringement notice relating to a contravention of a
designated infringement notice provision unless the officer, or another
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.
205ZB
Withdrawal of an infringement notice
(1) This section applies if an infringement
notice is given to a person.
(2) An authorised infringement notice officer
may, by written notice (the withdrawal notice) given to the
person, withdraw the infringement notice.
(3) To be effective, the withdrawal notice
must be given to the person within 28 days after the infringement notice was
given.
Refund of penalty if infringement notice withdrawn
(4) If:
(a) the penalty specified in the
infringement notice is paid; and
(b) the infringement notice is
withdrawn after the penalty is paid;
the Commonwealth is liable to refund the penalty.
205ZC
What happens if the penalty is paid
(1) This section applies if:
(a) an infringement notice relating to
an alleged contravention of a designated infringement notice provision is given
to a person; and
(b) the penalty is paid in accordance
with the infringement notice; and
(c) the infringement notice is not
withdrawn.
(2) Any liability of the person for the
alleged contravention is discharged.
(3) Proceedings may not be brought against
the person for the alleged contravention.
205ZD
Effect of this Part on criminal proceedings
This Part does not:
(a) require an infringement notice to
be given in relation to an alleged contravention of a designated infringement
notice provision; or
(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
(ii) an infringement notice
relating to the contravention is given to the person and subsequently
withdrawn; or
(c) limit a court’s discretion to
determine the amount of a penalty to be imposed on a person who is found in
proceedings to have contravened a designated infringement notice provision.
205ZE
Appointment of authorised infringement notice officer
The ACMA may, by writing, appoint a
member of the staff of the ACMA as an authorised infringement notice officer
for the purposes of this Act.
205ZF
Regulations
The regulations may make further
provision in relation to infringement notices.
Part 15—Miscellaneous
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.
(2) The ACMA
must not publish such an opinion until:
(a) in
the case of an opinion under section 21—the service to which it relates
has commenced; or
(b) in the case of an opinion under
section 74—the transaction has taken place or the contract, agreement or
arrangement has been entered into.
211
Service of notices
In addition to other methods of giving a
notice to a person, a notice under this Act may be given to a person by telex
or by facsimile transmission.
212
Special provisions for re‑transmission of programs
(1) Subject to this section, the regulatory
regime established by this Act does not apply to a service that does no more
than:
(a) re‑transmit programs that
are transmitted by a national broadcasting service; or
(b) re‑transmit programs that
are transmitted by a commercial broadcasting licensee or a community
broadcasting licensee:
(i) within the licence
area of that licence; or
(ii) outside the licence
area of that licence in accordance with permission in writing given by the ACMA;
or
(c) re‑transmit programs that
are transmitted by a service that does no more than transmit program material
supplied by National Indigenous TV Limited.
(2) No action, suit or proceeding lies
against a person in respect of the re‑transmission by the person of programs
as mentioned in subsection (1).
(2A) However, the rule in subsection (2)
does not prevent an action, suit or proceeding against a person under the Copyright
Act 1968 for infringement of copyright subsisting in a work, a sound
recording or a cinematograph film, where:
(a) the infringement is in respect of
the re‑transmission by the person of programs as mentioned in subsection (1);
and
(b) the re‑transmission is not
provided by a self‑help provider.
(2B) The rule in subsection (2) does not
prevent an action, suit or proceeding against a person under the Radiocommunications
Act 1992 in relation to a breach of any of the conditions of a datacasting
transmitter licence.
(2C) The Minister may give the ACMA a written
direction about the exercise of the power conferred by subparagraph (1)(b)(ii).
(3) A
reference in this section to a re‑transmission does not
include a reference to:
(a) a re‑transmission by a
commercial television broadcasting licensee of the programs transmitted by any
of the licensee’s commercial television broadcasting services; or
(aa) a re‑transmission by a
commercial radio broadcasting licensee of the programs transmitted by any of the
licensee’s commercial radio broadcasting services; or
(b) a re‑transmission by a
community broadcasting licensee (other than a designated community radio
broadcasting licensee) of the programs transmitted by the licensee’s community
broadcasting service; or
(ba) a re‑transmission by a
designated community radio broadcasting licensee of the programs transmitted by
any of the licensee’s community radio broadcasting services; or
(c) a re‑transmission by the
Australian Broadcasting Corporation of the programs transmitted by any of its
national broadcasting services, being national broadcasting services covered by
paragraph 13(1)(a); or
(d) a re‑transmission by the
Special Broadcasting Service Corporation of the programs transmitted by any of
its national broadcasting services; or
(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) a non‑profit body which
provides the re‑transmission for the sole or principal purpose of
obtaining or improving reception in a small community; or
(b) a local government body which
provides the re‑transmission for the sole or principal purpose of
obtaining or improving reception in a community located in the area served by
the body; or
(c) a
company which operates a mine and/or related infrastructure at an isolated
location and which provides the re‑transmission for the sole or principal
purpose of obtaining or improving reception in a community:
(i) that is located in the
vicinity of the mine or infrastructure, as the case may be; and
(ii) that accommodates the
whole or a part of the workforce for the mine or infrastructure, as the case
may be; or
(d) a company which operates a petroleum,
oil or gas installation and/or related infrastructure at an isolated location
and which provides the re‑transmission for the sole or principal purpose
of obtaining or improving reception in a community:
(i) that is located in the
vicinity of the installation or infrastructure, as the case may be; and
(ii) that accommodates the
whole or a part of the workforce for the installation or infrastructure, as the
case may be; or
(e) a person who provides the re‑transmission
within a building or structure for the sole or principal purpose of obtaining
or improving reception for persons in the building or structure, as the case
may be; or
(f) a person who provides the re‑transmission
within one or more places that are all in the same area (within the meaning of
section 36 of the Telecommunications Act 1997) for the sole or
principal purpose of obtaining or improving reception for persons in those
places; or
(g) a person who is a declared self‑help
provider in relation to the re‑transmission;
other than:
(h) a subscription television
broadcasting licensee; or
(i) a related body corporate of a
subscription television broadcasting licensee; or
(j) a person who is an excluded
provider in relation to the re‑transmission.
(2) Nothing in subsection (1) limits the
generality of anything else in subsection (1).
(3) Subsection (1) does not limit the
generality of anything in section 212B.
(4) In this
section:
declared self‑help provider has the
meaning given by section 212B.
excluded provider has the meaning given by
section 212B.
isolated location means a place in a State or
Territory that is not at a location in, or adjacent to, an eligible urban area
(within the meaning of section 140 of the Fringe Benefits Tax
Assessment Act 1986).
non‑profit body means an incorporated
body that:
(a) is not carried on for the purposes
of profit or gain to its individual members; and
(b) is prohibited by its constituent
document from making any distribution of money or property to its individual
members.
related body corporate has the same meaning
as in the Corporations Act 2001.
212B
Declared self‑help providers and excluded providers
Declared self‑help providers
(1) The Minister may, by writing, determine
that a specified person who provides a re‑transmission of programs for
the sole or principal purpose of obtaining or improving reception is a declared
self‑help provider in relation to the re‑transmission for
the purposes of section 212A.
(2) The Minister may, by writing, determine
that a specified person who provides a re‑transmission of programs for
the sole or principal purpose of obtaining or improving reception in specified
circumstances is a declared self‑help provider in relation
to the re‑transmission for the purposes of section 212A.
Excluded providers
(3) The Minister may, by writing, determine
that a specified person who provides a re‑transmission of programs is an excluded
provider in relation to the re‑transmission for the purposes of
section 212A.
(4) The Minister may, by writing, determine
that a specified person who provides a re‑transmission of programs in
specified circumstances is an excluded provider in relation to
the re‑transmission for the purposes of section 212A.
Determination has effect
(5) A determination under this section has
effect accordingly.
Disallowable instrument
(6) A determination under this section is a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
Note: For specification by class, see subsection
46(2) of the Acts Interpretation Act 1901.
213
Penalties for continuing offences
If an offence against this Act is a
continuing offence (whether under this Act or because of section 4K of the
Crimes Act 1914), the maximum penalty for each day that the offence
continues is 10% of the maximum penalty that could be imposed in respect of the
principal offence.
214
Procedure relating to continuing offences
(1) Where subsection 66(2), 121FG(2) or 121FHA(2),
121FJC(2), section 136, subsection 138(4), section 140 or subsection
142(5) or subclause 49(2), 50(3), 52(2) or 53(5) of Schedule 6 applies to
an offence against a provision of this Act, charges against the same person for
any number of offences against that provision may be joined in the same
information, complaint or summons if those charges are founded on the same
facts or form, or are part of a series of offences of the same or a similar
character.
(2) If a person is convicted of 2 or more
offences against such a provision, the court may impose one penalty in respect
of both or all of those offences, but that penalty must not exceed the sum of
the maximum penalties that could be imposed if a separate penalty were imposed
in respect of each offence.
215
Guidelines relating to ACMA’s enforcement powers etc.
ACMA’s enforcement powers etc.
(1) In exercising a power conferred on the
ACMA by:
(a) Division 4 of Part 8B;
or
(b) Part 10, 13, 14B, 14C or 14D;
or
(c) Part 8 of Schedule 6;
the ACMA must have regard to any relevant guidelines in
force under subsection (4).
Power to give infringement notices
(2) In exercising a power conferred on an
authorised infringement notice officer by Part 14E, the officer must have
regard to any relevant guidelines in force under subsection (4).
Referrals to Director of Public Prosecutions
(3) In deciding whether to refer a matter to
the Director of Public Prosecutions for action in relation to a possible
offence against this Act, the ACMA must have regard to any relevant guidelines
in force under subsection (4).
Formulation of guidelines
(4) The ACMA may, by legislative instrument,
formulate guidelines for the purposes of subsections (1), (2) and (3).
Note: For consultation requirements, see Part 3
of the Legislative Instruments Act 2003.
(5) The ACMA must ensure that guidelines
relating to the powers conferred on the ACMA by:
(a) Division 4 of Part 8B;
or
(b) Part 10, 14B or 14D; or
(c) Part 8 of Schedule 6;
are in force under subsection (4) at all times after
the commencement of this section.
(6) The ACMA must ensure that guidelines
relating to the powers conferred on an authorised infringement notice officer
by Part 14E are in force under subsection (4) at all times after the
commencement of this section.
215A
Review—technologies for the transmission of digital radio broadcasting services
and restricted datacasting services in regional licence areas etc.
(1) Before 1 January 2011, the Minister must cause to be conducted a review of the following matters:
(a) the relative merits of using
various terrestrial and satellite technologies capable of transmitting:
(i) digital radio
broadcasting services; and
(ii) restricted datacasting
services;
in regional licence areas;
(b) the development of those
technologies (whether or not in Australia);
(c) the availability and price
(whether or not in Australia) of:
(i) transmission equipment
associated with those technologies; and
(ii) domestic reception
equipment associated with those technologies;
(d) whether any laws of the
Commonwealth should be amended in order to facilitate the transmission of:
(i) digital radio
broadcasting services; and
(ii) restricted datacasting
services;
in regional licence areas using
those technologies.
(2) In
conducting a review of the matter mentioned in paragraph (1)(a), regard
must be had to:
(a) the geographic coverage that would
result from the use of those technologies to transmit:
(i) digital radio
broadcasting services; and
(ii) restricted datacasting
services;
in regional licence areas; and
(b) the characteristics of:
(i) digital radio
broadcasting services; and
(ii) restricted datacasting
services;
that would be likely to result
from the use of those technologies to transmit those services in regional
licence areas.
(3) Subsection (2) does not limit
subsection (1).
Report
(4) The Minister must cause to be prepared a
report of a review under subsection (1).
(5) The Minister must cause copies of a
report to be tabled in each House of the Parliament within 15 sitting days of
that House after the completion of the report.
Definitions
(6) In this section:
digital radio broadcasting service means:
(a) a digital commercial radio
broadcasting service; or
(b) a digital community radio
broadcasting service; or
(c) a digital national radio
broadcasting service.
regional licence area has the same meaning as
in section 8AC.
215B
Review—development and regulation of digital radio broadcasting services and
restricted datacasting services
(1) Before 1 January 2014, the Minister must cause to be conducted a review of the following matters:
(a) the development of various terrestrial
and satellite technologies capable of transmitting:
(i) digital radio
broadcasting services; and
(ii) restricted datacasting
services;
in Australia;
(b) the implementation of those
technologies in foreign countries;
(c) the operation of this Act in so
far as it deals with the licensing and regulation of:
(i) digital radio
broadcasting services; and
(ii) restricted datacasting
services.
(2) The Minister must cause to be prepared a
report of a review under subsection (1).
(3) The Minister must cause copies of a
report to be tabled in each House of the Parliament within 15 sitting days of
that House after the completion of the report.
(4) In this section:
digital radio broadcasting service means:
(a) a digital commercial radio
broadcasting service; or
(b) a digital community radio
broadcasting service; or
(c) a digital national radio
broadcasting service.
216
Ministerial consultative and advisory bodies
The Minister may form consultative or
advisory bodies to assist the Minister in the administration of this Act.
216A
Schedule 4 (digital television broadcasting)
Schedule 4 has effect.
216B
Schedule 5 (online services)
Schedule 5 has effect.
216C
Schedule 6 (datacasting services)
Schedule 6 has effect.
217
Regulations
(1) The Governor‑General may make
regulations prescribing matters:
(a) required or permitted to be
prescribed by this Act; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) The regulations may prescribe penalties,
not exceeding 250 penalty units for a company or 50 penalty units for a natural
person, for offences against the regulations.
218
Channel sharing
(1) The regulations may make provision for
the allocation by the ACMA of additional commercial television broadcasting
licences, commercial radio broadcasting licences and community broadcasting
licences on the application of an existing licensee.
(2) Those
additional licences are:
(a) to
be allocated to a person other than the licensee; and
(b) to allow the provision of
broadcasting services with the use of the same part of the broadcasting
services bands or other means of delivery as is used by the licensee.
(3) The provisions of this Act, other than
the provisions dealing with advertising for or allocating licences, apply to
those additional licences.
(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.