An Act relating to broadcasting services, datacasting services and online services, and for related purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Broadcasting Services Act 1992.
2 Commencement
(1) Section 1, this section, sections 3 and 6 commence on the day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act commence on a day to be fixed by Proclamation.
(3) If those provisions do not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, those provisions commence on the first day after the end of that period.
3 Objects of this Act
(1) The objects of this Act are:
(a) to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; and
(aa) to promote the availability to audiences and users throughout Australia of a diverse range of datacasting services; and
(b) to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs; and
(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
(d) to ensure that Australians have effective 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
(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 ABA:
(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 ABA
(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 ABA with responsibility for monitoring the broadcasting industry, the datacasting industry and the Internet industry; and
(b) confers on the ABA a range of functions and powers that are to be used in a manner that, in the opinion of the ABA, 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 ABA 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 ABA use its powers, or a combination of its powers, in a manner that, in the opinion of the ABA, is commensurate with the seriousness of the breach concerned.
(3) This section does not, by implication, limit the functions and powers of:
(a) the Australian Communications Authority; or
(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:
ABA means the Australian Broadcasting Authority;
ACA means the Australian Communications Authority;
amount paid on shares, in relation to a company, includes an amount treated by the company as having been so paid;
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 ABA 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 ABA;
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 that part of the radiofrequency spectrum that:
(a) is designated under section 31 of the Radiocommunications Act 1992 as being primarily for broadcasting purposes; and
(b) is referred by the Minister under that section to the ABA 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;
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).
Chairperson means the Chairperson of the ABA;
class licence means a class licence determined by the ABA 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 commercial broadcasting service that provides radio programs;
commercial television broadcasting licence means a licence under Part 4 to provide a commercial broadcasting service that provides television programs;
community broadcasting licence means a licence under Part 6 or 6A to provide a community broadcasting service that provides radio programs or television programs;
community broadcasting service has the meaning given by section 15;
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;
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;
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.
Deputy Chairperson means the Deputy Chairperson of the ABA;
Federal Court means the Federal Court of Australia;
foreign person means:
(a) a natural person who is not an Australian citizen; or
(b) a company, wherever incorporated, where natural persons who are not Australian citizens hold company interests in the company exceeding 50%; or
(c) a company, wherever incorporated, where:
(i) a company referred to in paragraph (b); or
(ii) natural persons who are not Australian citizens and a company or companies referred to in paragraph (b);
hold company interests in the company exceeding 50%;
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 ABA 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 ABA under this Act (other than a class licence).
licence area means an area designated by the ABA under section 29, 40 or 92G;
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 ABA, and includes the Chairperson and the Deputy Chairperson;
Minister for Foreign Affairs means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
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;
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;
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 ABA 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 ABA relating to the content or delivery of programs;
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.
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.
(2) A multi‑channelled national television broadcasting service (within the meaning of Schedule 4) 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 ABA may determine additional criteria or clarify existing criteria
(1) The ABA 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 ABA as to the making of determinations and clarifications, and the ABA 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 ABA 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 ABA 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 ABA, and must state the applicant’s opinion as to which category, or categories, of broadcasting services the service falls into.
(3) If the ABA considers that additional information is required before an opinion can be given, the ABA 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 ABA must, as soon as practicable after:
(a) receiving the application; or
(b) if the ABA 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 ABA has given an opinion under this section to the provider of a broadcasting service, neither the ABA nor any other Government agency may, while the circumstances relating to the broadcasting service remain substantially the same as those advised to the ABA 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 ABA 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 ABA does not, within 45 days after:
(a) receiving the application; or
(b) if the ABA 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 ABA is taken to have given an opinion at the end of that period that accords with the applicant’s opinion.
(7) The ABA may charge a fee for providing an opinion under this section.
(8) The ABA 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 ABA
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 ABA 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 ABA thinks fit.
Part 3—Planning of the broadcasting services bands
23 Planning criteria
In performing functions under this Part, the ABA 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 ABA considers relevant.
24 ABA to determine priorities
(1) Before preparing frequency allotment plans or licence area plans, the ABA 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 ABA may, by notice in writing, vary priorities.
25 Preparation of frequency allotment plans
(1) Where the Minister has, under section 31 of the Radiocommunications Act 1992, referred a part of the radiofrequency spectrum to the ABA for planning, the ABA 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 using that part of the radiofrequency spectrum.
(2) The ABA may, by notice in writing, vary a frequency allotment plan.
(3) In preparing or varying a frequency allotment plan, the ABA must comply with any directions, whether of a general or specific nature, given to the ABA in writing by the Minister.
26 Preparation of licence area plans
(1) The ABA is to prepare in writing 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.
(2) The ABA may, by notice in writing, vary a licence area plan.
27 Processes to be public
(1) In performing its functions under sections 24, 25 and 26, the ABA must make provision for wide public consultation.
(2) The ABA is to keep a record of, and make available for public inspection, all advice received by the ABA, and all assumptions made by the ABA, in performing its functions under sections 24, 25 and 26.
28 Limitation on allocation of commercial television broadcasting licences
The ABA must not, after 25 June 1998, allocate any new commercial television broadcasting licences in any licence area before 31 December 2006.
28A Section 28 does not apply to the allocation of a licence under section 38A or 38B
The rule in section 28 does not apply to the allocation of a licence under section 38A or 38B.
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 ABA is to designate one of the areas referred to in section 26 as the licence area of the licence.
(2) If the ABA varies a licence area plan, the ABA may vary the designation of the relevant licence areas.
30 ABA may determine population figures
(1) The ABA may, by notice in writing, determine the licence area population of a licence area.
(2) The ABA 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 ABA is to have regard to the most recently published census count prepared by the Australian Statistician.
(4) The ABA is to make a new determination of the licence area population of a licence area if the licence area is changed.
(5) The ABA 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 ABA 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 ABA under this Act or in accordance with a class licence.
(2) The ABA 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 ABA 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 ABA 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 ABA has not commenced or completed planning and allocation processes in relation to that spectrum;
the ABA 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 ABA:
(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 ABA 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 ABA considers relevant.
(3) The ABA 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 ABA 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 ABA 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 ABA under this Act; or
(c) a datacasting service provided in accordance with a class licence.
35 Notification of decisions under this Part
If the ABA makes an instrument under this Part, the ABA 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
36 ABA to determine system for allocating licences
(1) The ABA is to determine in writing a price‑based system for allocating:
(a) commercial television broadcasting licences and commercial radio broadcasting licences that are broadcasting services bands licences; and
(b) other commercial television broadcasting licences before the date referred to in section 28.
(2) The Minister may give specific directions to the ABA 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 ABA 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.
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 ABA decides that subsection 41(2) applies to the applicant.
(2) Paragraph (1)(b) does not require the ABA to consider the application of section 41 in relation to an applicant before allocating a licence to the applicant.
38 ABA to advertise for applications for certain licences
(1) Where the ABA is going to allocate one or more commercial television broadcasting licences or commercial radio broadcasting licences referred to in subsection 36(1), the ABA is to advertise, in a manner determined by the ABA, 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 ABA; 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 ABA; and
(b) be accompanied by the application fee determined in writing by the ABA.
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 ABA for an additional commercial television broadcasting licence for the licence area.
ABA must grant additional licence
(2) As soon as practicable, the ABA 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 ABA 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 ABA a fee determined by the ABA. The fee must not be more than the amount that, in the opinion of the ABA, represents the costs (including planning costs) incurred by the ABA 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.
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;
the existing licensees may, within 90 days after the designated time for the licence area, give to the ABA:
(d) 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) a joint written notice stating that each of the existing licensees will apply separately for an additional commercial television broadcasting licence for the licence area; or
(f) a joint written notice stating that only the existing licensee specified in the notice will apply 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 ABA for an additional commercial television broadcasting licence for the licence area.
Separate applications by existing licensees
(3) If a notice is given under paragraph (1)(e), each existing licensee may, within 12 months after the designated time for the licence area, apply in writing to the ABA for an additional commercial television broadcasting licence for the licence area.
Application by only one of the existing licensees
(4) If a notice is given under paragraph (1)(f), the existing licensee specified in the notice may, within 12 months after the designated time for the licence area, apply in writing to the ABA 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 ABA must allocate an additional commercial television broadcasting licence to the joint‑venture company for the licence area, so long as the ABA is satisfied that the joint‑venture company is jointly owned by the existing licensees.
Allocation of additional licence to existing licensee
(6) If the ABA has received applications from both of the existing licensees under subsection (3), the ABA 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, by the end of the 12‑month period beginning at the designated time for the licence area:
(a) the ABA has received an application from only one existing licensee (the first licensee) under subsection (3); and
(b) the ABA has not received a notice from the other existing licensee stating that it will not be applying under subsection (3);
the ABA 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 the ABA has received:
(a) an application from an existing licensee (the first licensee) under subsection (3); and
(b) a notice from the other existing licensee stating that it will not be applying under subsection (3);
the ABA 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) As soon as practicable after receiving an application under subsection (4), the ABA must allocate an additional commercial television broadcasting licence to the existing licensee concerned for the licence area.
Price‑based system for allocating licences where separate applications have been received
(10) The ABA 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 ABA 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 ABA 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 ABA 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.
(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 ABA a fee determined by the ABA. The fee must not be more than the amount that, in the opinion of the ABA, represents the costs (including planning costs) incurred by the ABA 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 the commercial television broadcasting service concerned 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 the commercial television broadcasting service concerned 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 ABA;
(ii) the start of 1 January 2004; and
(c) if any part of the licence area for the licence is within a remote licence area (within the meaning of Schedule 4)—the licensee will commence to provide the commercial television broadcasting service concerned in SDTV digital mode (within the meaning of Schedule 4) by the time that is notified in writing to the licensee by the ABA, being a time that is not earlier than the date determined by the ABA in relation to the remote licence area as mentioned in subclause 6(6A) of Schedule 4.
(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 services under the licence concerned for at least 2 years after the commencement of the provision of the 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 services under those licences for at least 2 years after the commencement of the provision of the commercial television broadcasting service under the additional licence.
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) if any part of the licence area is within a remote licence area (within the meaning of Schedule 4)—the time determined by the ABA in relation to the remote licence area for the purposes of this paragraph.
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 ABA, 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 ABA, suitable broadcasting services bands spectrum is available for providing another commercial radio broadcasting service in the same licence area;
the ABA 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 ABA is under an obligation at that later time to allocate the additional licence (unless the application has been withdrawn).
Matters that ABA must take into account
(4) The matters that the ABA 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 ABA must make a determination in writing setting out the technical specifications that apply to the additional licence. The ABA 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 ABA a fee determined by the ABA. The fee must not be more than the amount that, in the opinion of the ABA, represents the costs (including planning costs) incurred by the ABA 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 ABA 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).
(2) Before allocating a licence referred to in subsection (1) or paragraph 36(1)(b), the ABA 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 ABA; and
(b) be accompanied by the application fee determined in writing by the ABA.
(4) If the ABA makes a decision under subsection (1) or (2), the ABA must publish in the Gazette details of the allocation or the designation of a licence area.
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 ABA has not decided that subsection (2) applies to the company.
(2) The ABA 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
(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 ABA 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.
(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).
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 ABA may impose additional conditions
(1) The ABA 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 ABA proposes to vary or revoke a condition or to impose a new condition, the ABA 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 ABA in relation to the proposed action; and
(c) publish the proposed changes in the Gazette.
(3) This section does not allow the ABA to vary or revoke a condition set out in Part 3 or 4 of Schedule 2.
(4) If the ABA varies or revokes a condition or imposes a new condition, the ABA 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.
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 ABA 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 ABA 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 ABA, 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 ABA.
(2) If the ABA receives an application for renewal, the ABA must notify in the Gazette the fact that the application has been made.
47 ABA to renew licences unless it is aware of special circumstances
(1) Subject to subsection (2), if the ABA receives an application under section 46, the ABA must, by notice in writing given to the licensee, renew the licence for a period of 5 years.
(2) The ABA must refuse to renew a licence if the ABA decides that subsection 41(2) applies to the licensee.
(3) The ABA 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 ABA, surrender the licence.
Part 5—Control of commercial broadcasting licences and datacasting transmitter licences
Division 1—Preliminary
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.
52 Changes in licence area populations not to put persons in breach of this Part
If:
(a) the ABA 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.
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.
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 4—Limitation on foreign control of television
57 Foreign person not to be in position to control commercial television broadcasting licence
(1) A foreign person must not be in a position to exercise control of a commercial television broadcasting licence.
(3) 2 or more foreign persons must not have company interests in a commercial television broadcasting licensee that exceed 20%.
58 Limitation on foreign directorships—commercial television broadcasting licensees
(1) Subject to subsection (2), not more than 20% of the directors of each commercial television broadcasting licensee may be foreign persons.
(2) The ABA may, in writing, approve the board of a commercial television broadcasting licensee containing a higher percentage of foreign persons for a period not exceeding 28 days if the ABA considers special circumstances exist that require such an approval.
(3) If the ABA has approved a breach of subsection (1), the ABA is not to grant another approval of the same breach.
Division 5—Cross‑media rules
59 Newspapers associated with commercial television or radio broadcasting licence areas
(1) The ABA 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 ABA is satisfied that at least 50% of the circulation of a newspaper is within the licence area of a commercial television broadcasting licence, the ABA is to enter the name of the newspaper in the Register in relation to that licence area.
(4) If the ABA 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 ABA is to remove the name of the newspaper from the Register in relation to that licence area.
(4A) If the ABA 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 ABA must enter the name of the newspaper in the Register in relation to the licence area.
(4B) If the ABA 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 ABA must remove the name of the newspaper from the Register in relation to the licence area.
(5) 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.
(6) The ABA may charge fees for inspections of the Register or for the provision of copies of or extracts from the Register.
(7) The ABA 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.
60 Limitation on control of commercial television broadcasting licences, commercial radio broadcasting licences and associated newspapers
A person must not be in a position to exercise control of:
(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.
61 Limitation on cross‑media directorships
(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 a company that is in a position to exercise control of a commercial radio broadcasting licence that has the same licence area; or
(b) a company that is in a position to exercise control of a commercial television broadcasting licence and a company that is in a position to exercise control of a newspaper that is associated with the licence area of that licence; or
(c) a company that is in a position to exercise control of a commercial radio broadcasting licence and a company that is in a position to exercise control of a newspaper that is associated with the licence area of that 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:
(i) a company that is in a position to exercise control of a commercial radio broadcasting licence that has the same licence area; or
(ii) a company that is in a position to exercise control of a newspaper that is associated with the licence area of the commercial television broadcasting licence.
(3) A person must not:
(a) be in a position to exercise control of a commercial radio broadcasting licence; and
(b) be a director of:
(i) a company that is in a position to exercise control of a commercial television broadcasting licence that has the same licence area; or
(ii) a company that is in a position to exercise control of a newspaper that is associated with the licence area of the commercial radio broadcasting licence.
(4) A person must not:
(a) be 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; and
(b) be a director of a company that is in a position to exercise control of that licence.
Division 6—Notification provisions
62 Requirement on licensees to notify control and directorships
(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 ABA 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; and
(c) in the case of a commercial television broadcasting licensee or a commercial radio broadcasting licensee—the name of each foreign 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 ABA.
Penalty:
(a) if the breach relates to a commercial television broadcasting licence or datacasting transmitter licence—500 penalty units; or
(b) if the breach relates to a commercial radio broadcasting licence—50 penalty units.
63 Requirement to notify changes in control
(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 7 days after becoming so aware, notify the ABA in writing of that event.
(2) The details are to be provided in a form approved in writing by the ABA.
Penalty:
(a) if the breach relates to a commercial television broadcasting licence or datacasting transmitter licence—500 penalty units; or
(b) if the breach relates to a commercial radio broadcasting licence—50 penalty units.
64 Person who obtains control of a licence must notify the ABA
(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 7 days after becoming so aware, notify the ABA in writing of that position.
(2) The details are to be provided in a form approved in writing by the ABA.
Penalty:
(a) if the breach relates to a commercial television broadcasting licence or datacasting transmitter licence—500 penalty units; or
(b) if the breach relates to a commercial radio broadcasting licence—50 penalty units.
65 Person in control of commercial television licence must notify the ABA of newspaper interests
(1) Each person who is in a position to exercise control 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 ABA in writing details of any company interests that the person had at the end of that financial year in a newspaper that is associated with the licence area of the licence.
(2) The details are to be provided in a form approved in writing by the ABA.
Penalty:
(a) if the breach relates to a commercial television broadcasting licence—500 penalty units; or
(b) if the breach relates to a commercial radio broadcasting licence—50 penalty units.
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, 3, 4 or 5; 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, 3, 4 or 5; and
(c) the person was a party to the transaction or was in a position to prevent the transaction taking place; and
(d) the ABA has not approved the breach under subsection 58(2) or 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, 3, 4 or 5.
(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, 3, 4 or 5 continues.
(3) A prosecution for an offence under this section against a person in relation to a transaction cannot be commenced if the ABA 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, 3 or 5, make an application to the ABA for an approval of the breach.
(2) An application is to be made in accordance with a form approved in writing by the ABA.
(3) If the ABA considers that additional information is required before the ABA can make a decision on an application, the ABA 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 ABA 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, 3 or 5; 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 ABA 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 ABA may specify in a notice the action that the ABA considers the person is to take so that the person is no longer in breach of the relevant provision.
(7) If the ABA does not, within 45 days after:
(a) receiving the application; or
(b) if the ABA 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 ABA 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 ABA for an extension of that period.
(2) The ABA 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 ABA considers that additional information is required before the ABA can make a decision on an application, the ABA 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 ABA 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 ABA 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 ABA must not have regard to any financial disadvantage that compliance with the notice may cause.
(6) If the ABA does not, within 45 days after:
(a) receiving the application; or
(b) if the ABA has requested further information—receiving that further information;
extend the period or refuse to extend the period originally specified in the notice, the ABA 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 ABA
70 Notices by the ABA
(1) If the ABA is satisfied that a person is in breach of a provision of Division 2, 3, 4 or 5, the ABA 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 ABA 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 ABA is satisfied that the breach was deliberate and flagrant, the period specified in the notice must be one month.
(6) If the ABA gives a notice under subsection (1) in respect of a breach that the ABA had approved under section 67, the ABA must specify a period of one month in the notice under subsection (1).
(7) If the ABA 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 ABA 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 ABA 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 ABA considers that additional information is required before the ABA can make a decision on an application, the ABA 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 ABA 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 ABA 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 ABA must not have regard to any financial disadvantage that compliance with the notice may cause.
(7) If the ABA does not, within 45 days after:
(a) receiving the application; or
(b) if the ABA has requested further information—receiving that further information;
extend the period or refuse to extend the period originally specified in the notice, the ABA 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 under section 38B not to result in breach of ownership limits
(1) If an additional licence has been allocated under subsection 38B(6), (7), (8) or (9) 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) Subsection (1) 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).
(3) If an additional licence has been allocated under subsection 38B(5) to a company, then, while:
(a) the company remains:
(i) the holder of the additional licence; and
(ii) partly owned by another company that was the holder of one of the existing licences at the time of the allocation; and
(b) the other company remains the holder of the existing licence;
the existing licence and the additional licence are to be treated, for the purposes of this Part, as being only one licence.
(4) For the purposes of this section, a company (the first company) is partly owned by another company if, and only if, at least one share in the first company is beneficially owned by the other company.
Division 10—Prior opinions by the ABA
74 Requests to ABA 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 ABA 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 ABA, 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 ABA considers that additional information is required before an opinion can be given, the ABA 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 ABA must, as soon as practicable after:
(a) receiving the application; or
(b) if the ABA 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 ABA 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 ABA 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 ABA 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 ABA does not, within 45 days after:
(a) receiving the application; or
(b) if the ABA 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 ABA is to be taken to have given an opinion at the end of that period that accords with the applicant’s opinion.
(7) The ABA may charge a fee for providing an opinion under this section.
Division 11—Miscellaneous
75 Register of matters under this Part
(1) The ABA 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 ABA under section 67; and
(c) extensions granted by the ABA under section 68; and
(d) notices given by the ABA under section 70; and
(e) extensions granted by the ABA under section 71.
(2) The ABA 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 ABA may charge fees for inspections of the Register or for the provision of copies of or extracts from the Register.
(5) The ABA 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 ABA to advertise for applications for BSB community broadcasting licences
(1) Where the ABA is going to allocate one or more community broadcasting licences that are broadcasting services bands licences, the ABA is to advertise, in a manner determined by the ABA, 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 ABA; 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 ABA 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 ABA.
81 When licences must not be allocated
(1) A licence is not to be allocated to an applicant if the ABA decides that subsection 83(2) applies to the applicant.
(2) Subsection (1) does not require the ABA 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 ABA may allocate to a person, on application in writing by the person, a community broadcasting licence that is not a broadcasting services bands licence.
(2) Applications must:
(a) be in accordance with a form approved in writing by the ABA; and
(b) be accompanied by the application fee determined in writing by the ABA.
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 ABA has not decided that subsection (2) applies to the company.
(2) The ABA 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
(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 ABA 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.
(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 ABA 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 ABA is 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; 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.
85 ABA not required to allocate community broadcasting licence to any applicant
The ABA is not required to allocate a community broadcasting licence to any applicant.
86 Conditions of community broadcasting licences
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.
87 ABA may impose additional conditions on community broadcasting licences
(1) The ABA 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 ABA proposes to vary or revoke a condition or to impose a new condition, the ABA must give to the licensee:
(a) written notice of its intention; and
(b) a reasonable opportunity to make representations to the ABA in relation to the proposed action; and
(c) publish the proposed changes in the Gazette.
(3) This section does not allow the ABA to vary or revoke a condition set out in Part 5 of Schedule 2.
(4) If the ABA varies or revokes a condition or imposes a new condition, the ABA 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.
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 ABA 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 ABA 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 ABA, at least 20 weeks but not more than one year before the licence is due to expire.
(2) If the ABA receives an application for renewal, the ABA must notify in the Gazette the fact that the application has been made.
91 ABA to renew community broadcasting licences unless it is aware of special circumstances
(1) Subject to subsection (2), if the ABA receives an application under section 90, the ABA must, by notice in writing given to the licensee, renew the licence for a period of 5 years.
(2) The ABA must refuse to renew a community broadcasting licence if the ABA decides that subsection 83(2) applies to the licensee.
(3) The ABA is not required to conduct an investigation or a hearing into whether a licence should be renewed.
92 Surrender of community broadcasting licences
A community broadcasting licensee may, by notice in writing given to the ABA, 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 ABA under paragraph 92G(1)(c) or varied by the ABA 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 ABA under paragraph 92G(1)(b) or varied by the ABA under section 92J.
92B Temporary community broadcasting licences
(1) The ABA 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 ABA.
92C Applicants for temporary community broadcasting licences
(1) The ABA 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 ABA is not to allocate a licence to an applicant if the ABA decides that subsection 92D(2) applies to the applicant in relation to the licence. However, the ABA is not required to consider the application of subsection 92D(2) to the applicant before allocating the licence.
(3) The ABA 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 ABA’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 ABA 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 ABA 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
(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 ABA 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.
(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 ABA 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 ABA 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 ABA is not to allocate a temporary community broadcasting licence except in accordance with a determination of the ABA under section 34.
92G Licence area, timing conditions and licence period
(1) Before allocating a temporary community broadcasting licence, the ABA 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 ABA 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 ABA 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 ABA may vary conditions or periods, or impose new conditions
(1) The ABA 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 ABA 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 ABA proposes to vary or revoke a condition, impose an additional condition or vary the licence period, the ABA is to give to the licensee:
(a) written notice of its intention; and
(b) a reasonable opportunity to make representations to the ABA in relation to the proposed action.
(5) This section does not allow the ABA:
(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 ABA varies or revokes a condition (other than a timing condition), imposes an additional condition or varies the licence period, the ABA 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 ABA, surrender the licence.
Part 7—Subscription television broadcasting services
Division 1—Allocation of subscription television broadcasting licences
93 Minister to determine allocation system for satellite licences allocated before 1 July 1997
(1) The Minister is to determine in writing a price‑based allocation system for allocating 2 licences (licence A and licence B) each of which allows the provision of up to 4 subscription television broadcasting services with the use of a subscription television satellite.
(2) After licence A and licence B have been allocated, the Minister is to allocate to a subsidiary of the Australian Broadcasting Corporation nominated by that corporation a licence (licence C) which allows the provision of up to 2 subscription television broadcasting services with the use of a subscription television satellite.
(3) The allocation of licence C is subject to such terms and conditions as the Minister determines in writing, and those conditions are to include a condition requiring the establishment of a corporate structure separate to the Australian Broadcasting Corporation to manage and operate services under the licence.
(4) Conditions determined under subsection (3) are to be conditions of licence C.
(5) The price‑based allocation system may provide that the ABA is to allocate the licences, and may require an application fee.
(6) If the Minister decides, in accordance with the price‑based allocation system, that a licence referred to in subsection (1) is to be allocated to a particular person, the Minister may direct the ABA to allocate that licence to that person and, subject to section 98, the ABA must allocate that licence to that person.
(7) A subscription television broadcasting licence must not be allocated under this section if the Australian Competition and Consumer Commission has reported, within 45 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 would, if Part IV of the Trade Practices Act 1974 applied to the allocation of the licence, constitute a contravention of that Part of that Act.
(8) When licence A or licence B is allocated, the Minister must 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.
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 ABA decides that subsection 98(2) applies to the applicant.
(2) Paragraph (1)(b) does not require the ABA 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 ABA may allocate to a person, on application in writing by the person, a subscription television broadcasting licence other than a licence referred to in section 93.
(2) Licences under subsection (1) are to be allocated on the basis of one licence per service.
(3) The ABA must not, before 1 July 1997, allocate a licence under subsection (1) that uses a satellite as a means of service delivery.
(3A) In dealing with an application for a licence under subsection (1) for a service that is dependent on an MDS system as its means of transmission or as a part of its means of transmission (whether that application is made before or after the commencement of this subsection), the ABA must not allocate such a licence before services commence under licence A, licence B or licence C.
(3B) Subsection (3A) ceases to have effect on 31 December 1994.
(4) Applications must:
(a) be in accordance with a form approved in writing by the ABA; and
(b) be accompanied by the application fee determined by the ABA.
(5) The ABA 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 ABA must publish in the Gazette the name of the successful applicant.
96A Monitoring of cross‑media ownership of licences allocated under section 96
(1) The ABA, in consultation with the Australian Competition and Consumer Commission, must monitor the cross‑media ownership of the holders of licences allocated under section 96 in the context of the objects of this Act, particularly paragraph 3(c).
(2) If, as a result of that monitoring, the ABA is concerned that the objects of this Act are being undermined, the ABA must report that concern to the Minister.
(3) The Minister must cause a copy of a report under this section to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.
97 Requests to Australian Competition and Consumer Commission
(1) Before a subscription television broadcasting licence is allocated to a person under section 93 or 96, the ABA 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 ABA has not decided that subsection (2) applies to the person.
(2) The ABA 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
(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 ABA 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.
(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).
98A Certain applicants for licences A and B to pay deposits
(1) In this section:
allocation determination means the determination of a price‑based allocation system for allocating subscription television broadcasting licences A and B made by the Minister on 19 January 1993 under subsection 93(1);
business day means a day other than a Saturday, a Sunday or a public or bank holiday in any state, the Australian Capital Territory or the Northern Territory.
(2) This section applies to any applicant for a subscription television broadcasting licence who is given notice by the Secretary under the allocation determination after the commencement of this section that:
(a) subject to subsection 93(7); and
(b) unless the ABA decides that subsection 98(2) applies to the applicant;
the applicant will be allocated licence A or licence B on payment of the price bid for that licence.
(3) For the purpose of the operation of this section in relation to notices given under the allocation determination after this section commences, such notices are only taken to have been given to an applicant on the day when they are delivered by courier:
(a) to the address of the applicant notified in the tender; or
(b) if the applicant has notified in the tender an address other than the address of the applicant as the place for service of notices—to that place; or
(c) if the courier is unable to effect delivery at the applicant’s address, or any other address, notified in the tender—to the registered office of the applicant within Australia.
(4) An applicant to whom this section applies must, within 3 business days after the day on which notice is given to the applicant in respect either of licence A or licence B, pay to the Commonwealth a deposit of 5% of the price bid by the applicant in the tender for the licence.
(5) For the purposes of the operation of the allocation determination in relation to an applicant to whom this section applies, the payment of the deposit counts towards the payment of the price bid by the applicant as required under that determination.
(6) A deposit:
(a) must be paid to the Collector of Public Money within the Department of Transport and Communications; and
(b) must be paid in Australian dollars; and
(c) must be in the form of a bank cheque issued by a bank licensed to operate in Australia.
(7) If an applicant to whom this section applies fails to pay a deposit in accordance with this section in respect of a tender for licence A or licence B:
(a) the applicant is taken for the purposes of the allocation determination, including the allocation determination as affected by this Act, not to have lodged a tender; and
(b) the Secretary must inform the ABA, by notice in writing, of the failure to pay that deposit; and
(c) the procedures set out in clause 8 of the allocation determination, including those procedures as affected by this Act, apply again in respect of the applicant bidding the next highest price for the licence.
(8) If, under section 98C, an applicant to whom this section applies withdraws a tender for licence A or licence B:
(a) the applicant is taken for the purposes of the allocation determination, including the allocation determination as affected by this Act, not to have lodged a tender; and
(b) the Secretary must inform the ABA, by notice in writing, of the withdrawal of that tender; and
(c) the procedures set out in clause 8 of the allocation determination, including those procedures as affected by this Act, apply again in respect of the applicant bidding the next highest price for the licence.
98B Repayment of deposit
(1) If:
(a) a deposit has been paid under section 98A by an applicant to whom that section applies; and
(b) the applicant is not subsequently allocated a licence by the ABA because of a report described in subsection 93(7);
the Commonwealth must repay the deposit and, in accordance with subsection (2), interest on the deposit, as soon as practicable after the receipt by the ABA of that report.
(2) Interest on a deposit that is to be repaid is payable from and including the day on which the deposit was paid to and including the day on which the deposit is repaid.
(3) Interest payable under subsection (2) is to be paid at a rate determined in accordance with the regulations.
(4) The Consolidated Revenue Fund is appropriated to the extent necessary to make the repayment of a deposit, and of the interest payable on the deposit, in accordance with this section.
(5) A deposit paid under section 98A is not repayable by the Commonwealth if:
(a) the ABA decides that subsection 98(2) applies to the applicant; or
(b) the applicant fails within the time required by the allocation determination to pay the balance of the price bid.
98C Withdrawal of tenders
(1) Any applicant under section 93 for allocation of a subscription television broadcasting licence may withdraw the tender for that licence at any time before payment of the deposit required to be paid under section 98A.
(2) If an applicant withdraws a tender under subsection (1), the Commonwealth will repay the applicant the application fee of $500 paid in respect of that application.
(3) Nothing in subsection (1) implies that this section only applies to an applicant to whom section 98A applies or might, in the future, apply.
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 ABA 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.
(3) The Minister may give the ABA a notice in writing to take action under subsection (2) specified in the notice in relation to licence C, and the ABA must comply with the notice.
(4) If the ABA proposes to impose a new condition or to vary or revoke a condition otherwise than as a result of a direction under subsection (3), the ABA 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 ABA in relation to the proposed action; and
(c) publish the proposed changes in the Gazette.
(5) This section does not allow the ABA to vary or revoke a condition set out in Part 6 of Schedule 2.
(6) If the ABA varies or revokes a condition or imposes a new condition, the ABA 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 ABA 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 administered by the Office of Film and Literature Classification.
(3) The ABA 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 ABA 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 ABA 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 ABA 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.
101 Special condition relating to advertising
(1) Each subscription television broadcasting licence is subject to the condition that the licensee will not, before 1 July 1997, broadcast advertisements or sponsorship announcements.
(2) For the purposes of this section, a person is not taken to broadcast an advertisement if:
(a) the person broadcasts matter of an advertising character as an accidental or incidental accompaniment to the broadcasting of other matter; and
(b) the person does not receive payment or other valuable consideration for broadcasting the advertising matter.
(3) For the purposes of this section, a person is not taken to broadcast an advertisement if the person broadcasts matter that promotes subscription television broadcasting services being provided by that or another person.
103 Special condition applicable to licences A and B
(1) If:
(a) the Minister has declared a standard under section 94; and
(b) the Minister is satisfied that transmission and domestic reception equipment for broadcasting in accordance with that standard is commercially available;
the Minister may notify licensee A and licensee B in writing that the licensees must commence to provide broadcasting services under those licences within 6 months after the notification is given.
(2) The licences referred to in subsection (1) are subject to the condition that, if a notification is given under that subsection, the licensee will commence to provide broadcasting services under the licence within 6 months after the notification is given.
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.
• 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 1999 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.
channel means a continuous stream of programs.
channel provider has the meaning given by section 103C.
compliance certificate means a certificate under section 103ZE.
drama program means 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, and includes:
(a) a fully scripted sketch comedy program; or
(b) an animated drama; or
(c) a dramatised documentary;
but does not include:
(d) a program that involves the incidental use of actors; or
(e) 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 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.
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 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 Law.
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 Pre‑production expenditure not to be counted unless principal photography has commenced
For the purposes of this Division, 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 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 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 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 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.
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 ABA may make determinations about what constitutes program expenditure
Program material
(1) The ABA 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 ABA 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 ABA 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 ABA 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.
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.
Disallowable instrument
(7) 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.
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 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 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 channel provider’s new 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 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.
(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 channel provider’s new 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.
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 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) 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 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 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 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) 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 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 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 licensee’s new 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 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.
(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 licensee’s new 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.
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 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) 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 licensee’s new 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 licensee’s new 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 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.
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 part‑channel provider’s new 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 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.
(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 part‑channel provider’s new 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.
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 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) 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 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 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 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) 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 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 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 licensee’s new 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 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.
(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 licensee’s new 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.
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 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) 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 licensee’s new 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 licensee’s new 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 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.
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 ABA:
(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 ABA 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 ABA:
(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 ABA must inform the licensee, in writing, of that contravention as soon as practicable after the ABA 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 ABA for the purposes of the provision in which the expression appears.
103ZC ABA may inquire into the correctness of an annual return
The ABA 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 ABA 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 ABA must:
(d) give the licensee a written certificate stating:
(i) whether 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 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.
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 ABA must give the licensee a written certificate stating:
(d) whether 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 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 ABA must:
(d) give the licensee a written certificate stating:
(i) whether 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 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.
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 ABA must give the licensee a written certificate stating:
(d) whether 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 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 ABA 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 ABA 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 3—Ownership and cross‑media rules
Subdivision A—Preliminary
104 Application of Division
This Division, other than section 109, ceases to have effect on 1 July 1997.
105 Large circulation newspapers
(1) The ABA is to maintain a Large Circulation Newspaper Register.
(2) If the ABA is satisfied that the average daily circulation in Australia of a newspaper for the days on which the newspaper was published during the preceding financial year exceeds 100,000, the ABA is to enter the name of the newspaper in the Register.
(3) If the ABA is satisfied that the average daily circulation in Australia of a newspaper that is entered in the Register has fallen below 100,000 on a long‑term basis, the ABA is to remove the name of the newspaper from the Register.
(4) 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.
(5) The ABA may charge fees for inspections of the Register or for the provision of copies of or extracts from the Register.
(6) The ABA 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.
Subdivision B—Ownership and control restrictions
106 Person in control of newspaper not to control, or hold company interests in, licence A
A person who is in a position to exercise control of a newspaper that is entered in the Register kept under section 105 must not have company interests exceeding 2% in, or be in a position to exercise control of, licence A.
107 Commercial television licensees not to control, or hold company interests in, licence A
A person who is in a position to exercise control of a commercial television broadcasting licence must not have company interests exceeding 2% in, or be in position to exercise control of, licence A.
108 Telecommunications carriers not to control, or hold company interests in, licence A
A person who is in a position to exercise control of a telecommunications carrier must not have company interests exceeding 2% in, or be in a position to exercise control of, licence A.
109 Foreign ownership limits for subscription television broadcasting licences
(1) A foreign person must not have company interests of more than 20% in a subscription television broadcasting licence.
(2) A foreign person must not have company interests in a subscription television broadcasting licence that, when added to the company interests in that licence held by other foreign persons, exceed 35%.
110 Limits between satellite subscription television broadcasting licences
(1) A person who is in a position to exercise control of licence A must not, before 1 July 1997, have company interests exceeding 2% in, or be in a position to exercise control of, licence B.
(2) A person who is in a position to exercise control of licence B must not, before 1 July 1997, have company interests exceeding 2% in, or be in a position to exercise control of, licence A.
Division 4—Offences for breaches
111 Offences for breaches
Divisions 7 and 8 of Part 5 apply to Division 3 of this Part as if:
(a) references in Division 7 or 8 of Part 5 to a provision of Division 2, 3, 4 or 5 of Part 5 were references to a provision of Division 3 of this Part; and
(b) references in Division 7 of Part 5 to a provision of Division 2, 3 or 5 of Part 5 were references to a provision of Division 3 of this Part (other than section 109); and
(c) references in Division 7 or 8 of Part 5 to a commercial television broadcasting licence were references to a subscription television broadcasting licence.
Division 5—Notification provisions
112 Notification provisions
(1) For the purposes of this Division, 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.
(3) Each satellite subscription television broadcasting licensee must, within 3 months after the end of each financial year, give to the ABA in writing 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.
(4) If a satellite subscription television broadcasting 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 7 days after becoming so aware, notify the ABA in writing of that event.
(5) If a person who was not in a position to exercise control of a satellite subscription television broadcasting licence becomes aware that that person is in a position to exercise control of the licence, the person must, within 7 days after becoming so aware, notify the ABA in writing of that position.
(6) Each subscription television broadcasting licensee must, within 3 months after the end of each financial year, give to the ABA in writing details of each foreign person who, to the knowledge of the licensee, had company interests exceeding 20% in the licence at the end of that financial year.
(7) The details are to be provided in a form approved in writing by the ABA.
Penalty: 500 penalty units.
(8) This section, other than subsections (6) and (7), ceases to have effect on 1 July 1997.
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 ABA, 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.
(1B) Subject to subsection (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 ABA 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 ABA 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 ABA 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 administered by the Office of Film and Literature Classification.
120 Variation of class licences
(1) The ABA 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 ABA 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 ABA 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 Law.
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 ABA 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 ABA, 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 ABA for the allocation of international broadcasting licences.
• The ABA may only reject an application for the allocation of an international broadcasting licence to a person if:
(a) the ABA is not satisfied that the person is an Australian company; or
(b) the ABA 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 ABA 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 ABA 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 ABA 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 ABA; and
(b) be accompanied by the application fee determined in writing by the ABA.
121FB Corporate status and suitability
(1) If the ABA:
(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 ABA 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 ABA:
(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 ABA must refuse to allocate an international broadcasting licence to the applicant.
(3) If, under subsection (2), the ABA refuses to allocate an international broadcasting licence to an applicant, the ABA 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 ABA 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 ABA:
(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 ABA 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 ABA:
(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 ABA must refuse to allocate an international broadcasting licence to the applicant.
(7) If, under subsection (6), the ABA refuses to allocate an international broadcasting licence to an applicant, the ABA 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 ABA 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 ABA 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
(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 ABA 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.
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 ABA, direct the ABA 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 ABA, inform the ABA 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 ABA 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 ABA under subsection (1) of this section; or
(b) inform the ABA under subsection (2) of this section;
within 60 days after the referral.
Notification
(6) If the Minister for Foreign Affairs directs the ABA not to allocate an international broadcasting licence to an applicant, the ABA 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 ABA under subsection 121FD(2) that he or she has no objection to the allocation of an international broadcasting licence to an applicant, the ABA 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 ABA;
(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 ABA, 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.
121FH Notice for providing an international broadcasting service without a licence
(1) If the ABA is satisfied that a person is providing an international broadcasting service without an international broadcasting licence that authorises the provision of that service, the ABA may, by notice in writing given to the person, direct the person to cease providing the service.
(2) A person is guilty of an offence if:
(a) the person is subject to a notice under subsection (1); and
(b) the person engages in conduct; and
(c) the person’s conduct does not comply with the notice.
Penalty: 20,000 penalty units.
(3) A person who contravenes subsection (2) 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.
(4) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
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.
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 ABA may cancel the licence.
Notice of intention to cancel
(2) If the ABA proposes to cancel a licence under subsection (1), the ABA must give to the licensee:
(a) written notice of its intention; and
(b) a reasonable opportunity to make representations to the ABA in relation to the proposed cancellation.
Cancellation to be notified to the Australian Communications Authority
(3) If the ABA cancels a licence under subsection (1), the ABA must notify the cancellation to the Australian Communications Authority.
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 ABA, directs the ABA to issue a formal warning to the licensee;
the ABA must issue a formal warning to the licensee.
(2) If the ABA issues a formal warning under subsection (1), the ABA must notify the warning to the Australian Communications Authority.
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 ABA, directs the ABA to suspend the licence for the period specified in the direction;
the ABA must suspend the licence for the period specified in the direction.
(4) If the ABA suspends a licence under subsection (3), the ABA must notify the suspension to the Australian Communications Authority.
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 ABA, directs the ABA to cancel the licence;
the ABA must cancel the licence.
(6) If the Minister for Foreign Affairs proposes to direct the ABA to cancel an international broadcasting licence, he or she must direct the ABA 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 ABA in relation to the proposed direction; and
(c) forward any such submission to the Minister for Foreign Affairs.
(7) If the ABA cancels a licence under subsection (5), the ABA must notify the cancellation to the Australian Communications Authority.
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 ABA 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 ABA 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 ABA 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 ABA 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 ABA must give a copy of the declaration to:
(a) the transmission provider; and
(b) the content provider.
(3) If the ABA refuses to make a nominated broadcaster declaration, the ABA 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 ABA 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 ABA 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 ABA is taken to have given a written notice to the licensee of the international broadcasting licence if the ABA 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 ABA;
(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 ABA, 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 ABA 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 ABA 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 ABA 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 ABA 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 ABA 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 ABA 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 ABA 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 ABA must not revoke a nominated broadcaster declaration under subsection (1) or (2) unless the ABA 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 ABA 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 ABA 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 ABA 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 ABA 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 ABA is satisfied that the international broadcasting licensee is not a company that is formed in Australia or in an external Territory;
the ABA must cancel the licence.
(3) The ABA 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 ABA 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 ABA proposes to cancel a licence under subsection (1) or (2), the ABA must give to the licensee:
(a) written notice of its intention; and
(b) a reasonable opportunity to make representations to the ABA in relation to the proposed cancellation.
Cancellation to be notified to the ACA
(6) If the ABA cancels a licence under subsection (1) or (2), the ABA must notify the cancellation to the ACA.
121FLJ Register of nominated broadcaster declarations
(1) The ABA is to maintain a register in which the ABA 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—ABA 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 ABA, direct the ABA 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 ABA, direct the ABA 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 ABA 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 ABA, surrender the licence.
(2) If a licence is surrendered under subsection (1), the ABA must notify the surrender to the Australian Communications Authority.
121FR Complaints about international broadcasting services
(1) It is not a function of the ABA 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 ABA 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 ABA must, by notice in writing:
(a) determine standards that are to be observed by commercial television broadcasting licensees; and
(b) determine standards that are to be observed by community 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.
(3) Standards under subsection (1) for community television broadcasting licensees are to relate to programs for children.
(4) Standards must not be inconsistent with this Act or the regulations.
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; 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 ABA and taking account of any relevant research conducted by the ABA, 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 ABA 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; and
(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 administered by the Office of Film and Literature Classification; 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” 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” 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 administered by the Office of Film and Literature Classification; 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” 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” 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 ABA 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 ABA must include that code in the Register of codes of practice.
123A Review by the ABA
(1) The ABA 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 ABA concludes that subsection 123(3A) or (3C) is not in accordance with prevailing community standards, the ABA 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 ABA to maintain Register of codes of practice
(1) The ABA 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 ABA may determine program standards where codes of practice fail or where no code of practice developed
(1) If:
(a) the ABA 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 ABA is satisfied that it should determine a standard in relation to that matter;
the ABA must, by notice 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 ABA is satisfied that it should determine a standard in relation to that matter;
the ABA must, by notice in writing, determine a standard in relation to that matter.
126 Consultation on standards
The ABA 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 ABA determines or varies or revokes a standard, the ABA 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 ABA’s power in relation to standards
(1) Subject to subsection (2), the ABA must not determine a standard that requires that, before programs are broadcast, the programs, or a sample of the programs, be approved by the ABA or by a person or body appointed by the ABA.
(2) The ABA 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 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
(1) A person must not provide a subscription television broadcasting service unless the person has been allocated a licence, under Part 7, to provide that service.
Penalty:
(a) if the service is provided with the use of a satellite—20,000 penalty units; or
(b) in any other case—2,000 penalty units.
(2) A person must not, before 1 July 1997, provide a subscription television broadcasting service with the use of a satellite unless the service is provided through a subscription television satellite.
Penalty for an offence against this subsection: 20,000 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 2—Action by ABA where a person provides a service without a licence
137 Notices for providing broadcasting services without appropriate authority
If the ABA is satisfied that:
(a) a person is providing:
(i) a commercial television broadcasting service; or
(ii) a commercial radio broadcasting service; or
(iii) a subscription television broadcasting service;
without a licence to provide that service; or
(b) a person is providing a community broadcasting service without a licence to provide that service;
the ABA may, by notice in writing given to the person, direct the person to cease to provide that service.
138 Breach of notice under section 137 to constitute an offence
(1) A person who fails to comply with a notice under section 137 is guilty of an offence.
Penalty:
(a) if the notice was given under subparagraph 137(a)(i) or (iii)—20,000 penalty units; or
(b) if the notice was given under subparagraph 137(a)(ii)—2,000 penalty units; or
(c) if the notice was given under paragraph 137(b)—50 penalty units.
(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 failure to comply with the notice 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) of Schedule 2.
Penalty: 2,000 penalty units.
(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) of Schedule 2.
Penalty: 500 penalty units.
(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.
141 Notices to stop breaches of conditions of licences, class licences or of codes of practice
(1) If the ABA is satisfied that:
(a) a commercial television broadcasting licensee, a commercial radio broadcasting licensee or a community broadcasting licensee is breaching a condition of the licence; or
(b) a person who is in a position to exercise control of a commercial television broadcasting licence or a commercial radio broadcasting licence is causing the licensee to breach a condition of the licence; or
(c) a subscription television broadcasting licensee is breaching a condition of a subscription television broadcasting licence; or
(d) 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 ABA may, by notice in writing given to the person, direct the person to take action to ensure that the service is provided in a way that conforms to the requirements of the licence or class licence.
(2) If the ABA is satisfied that a person who is providing subscription radio broadcasting services, subscription narrowcasting services or open narrowcasting services is doing so in deliberate disregard of a code of practice that applies to those services and that is included in the Register of codes of practice, the ABA may, by notice in writing given to the person, direct the person to take action to ensure that those services are provided in accordance with that code of practice.
(3) The notice is to specify a period, not exceeding one month, during which the relevant action must be taken.
142 Breach of notice under section 141 to constitute an offence
A person who fails to comply with a notice under section 141 is guilty of an offence.
Penalty:
(a) if the notice was given to a commercial television broadcasting licensee, a person who is in a position to exercise control of a commercial television broadcasting licence or to a satellite subscription television broadcasting licensee—20,000 penalty units; or
(b) if the notice was given to a subscription television broadcasting licensee, other than a satellite subscription television broadcasting licensee—2,000 penalty units; or
(c) if the notice was given to a commercial radio broadcasting licensee or a person who is in a position to exercise control of a commercial radio broadcasting licence—500 penalty units; or
(d) in any other case—50 penalty units.
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 ABA 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 ABA 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 ABA 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 ABA 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 ABA 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 ABA proposes to take action under subsection (1), (1A) or (1B), the ABA must give to the person:
(a) written notice of its intention; and
(b) a reasonable opportunity to make representations to the ABA in relation to the proposed action.
(3) In this section:
related body corporate has the same meaning as in the Corporations Law.
Division 4—Action in relation to class licences
144 Application to Federal Court
(1) If the ABA 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 ABA 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.
Division 5—Miscellaneous
145 Continuing offences
In order to avoid any doubt, it is declared that section 4K of the Crimes Act 1914 applies to the obligations under this Part to comply with a notice, other than a notice under section 137.
146 Limitation on prosecutions
A prosecution for an offence under this Part against a person in relation to a matter cannot be commenced if the ABA has given the person a notice under section 141 in relation to the matter and the time for compliance with the notice has not expired.
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 Law.
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 the licensee’s commercial television broadcasting service; or
(b) in relation to a national broadcaster—televise on the broadcaster’s national television broadcasting service.
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.
ABA 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 ABA 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 ABA 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 ABA 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 ABA
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
(b) breached a condition of a licence or a class licence;
the person may make a complaint to the ABA 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 ABA about the matter.
149 Investigation of complaints by the ABA
(1) Subject to subsection (2), the ABA must investigate the complaint.
(2) The ABA 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
(ii) a breach of a condition of a licence.
(3) The ABA 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 ABA; 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 ABA about the matter.
151 Investigation of complaints relating to the ABC or SBS by the ABA
(1) Subject to subsection (2), the ABA must investigate the complaint.
(2) The ABA 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 ABA where complaint justified
(1) If, having investigated a complaint, the ABA is satisfied that:
(a) the complaint was justified; and
(b) the ABA 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 ABA 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 ABA must notify the complainant of the results of such an investigation.
153 ABA may report to Minister on results of recommendation
(1) If:
(a) the ABA 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 ABA considers to be appropriate;
the ABA 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 12—The Australian Broadcasting Authority
Division 1—Establishment and constitution of the ABA
154 Establishment of the ABA
(1) An authority called the Australian Broadcasting Authority is established.
(2) The ABA:
(a) is a body corporate with perpetual succession; and
(b) has a seal; and
(c) may sue and be sued in its corporate name.
Note: The Commonwealth Authorities and Companies Act 1997 applies to the ABA. That Act deals with matters relating to Commonwealth authorities, including reporting and accountability, banking and investment, and conduct of officers.
(3) All courts, judges and persons acting judicially are to take judicial notice of the imprint of the seal of the ABA appearing on a document and are to presume that the document was duly sealed.
155 How the ABA is to be constituted
(1) The ABA is to consist of:
(a) a Chairperson; and
(b) a Deputy Chairperson; and
(c) not more than 5 other members.
(2) The members are to be appointed by the Governor‑General.
(3) The Chairperson and Deputy Chairperson are to be appointed as full‑time members.
(4) The other members may be appointed as full‑time members or as part‑time members, but members appointed as part‑time members may be assigned by the Minister, acting on the advice of the ABA, on a full‑time basis to a particular investigation or hearing.
156 Minister may appoint associate members
(1) The Minister may appoint persons to be associate members of the ABA either for general purposes or for the purposes of:
(a) a particular investigation or hearing; or
(b) investigations or hearings of a particular type.
(2) An associate member’s instrument of appointment must specify whether the associate member:
(a) is appointed as a full‑time associate member or a part‑time associate member; and
(b) is appointed generally or for the purposes of:
(i) a particular investigation or hearing; or
(ii) investigations or hearings of a particular type.
(3) A person may hold 2 or more appointments under this section at the same time.
157 Period of appointment of members and associate members
(1) A member holds office for the period, not exceeding 5 years, specified in the instrument of appointment.
(2) A person may, on one occasion only, be re‑appointed as a member.
(2A) For the purposes of subsection (2), if:
(a) at a particular time, a person ceases to hold an office (original office) of member (other than the office of Chairperson or Deputy Chairperson); and
(b) immediately after that time, the person begins to hold the office of Chairperson, or the office of Deputy Chairperson, for a period which ends before, or at the same time as, the end of the period specified in the instrument of the person’s appointment to the original office;
the person’s appointment to the office of Chairperson or Deputy Chairperson, as the case may be, is taken not to be a re‑appointment.
(2B) For the purposes of subsection (2), if:
(a) at a particular time, a person ceases to hold the office of Deputy Chairperson; and
(b) immediately after that time, the person begins to hold the office of Chairperson for a period which ends before, or at the same time as, the end of the period specified in the instrument of the person’s appointment to the office of Deputy Chairperson;
the person’s appointment to the office of Chairperson is taken not to be a re‑appointment.
(3) Subject to subsection (4), an associate member holds office for the period, not exceeding 5 years, specified in the instrument of appointment, but is eligible for re‑appointment.
(4) If an associate member has been appointed for the purposes of a particular investigation or hearing, the associate member holds office:
(a) until the completion of the investigation or hearing; or
(b) until the end of the period specified in the instrument of appointment;
whichever first occurs.
(5) If a member or an associate member is conducting, or is part of the panel conducting, an investigation or hearing for the ABA, the Minister may extend the term of the member’s appointment until the completion of the investigation or hearing.
Division 2—Functions and powers of the ABA
158 Primary functions of the ABA
The primary functions of the ABA are:
(a) to provide advice to the ACA in relation to:
(i) the spectrum plan and frequency band plans under the Radiocommunications Act 1992; and
(ii) the designation under section 31 of that Act of parts of the radiofrequency spectrum as being primarily for broadcasting purposes; and
(b) to plan the availability of segments of the broadcasting services bands on an area basis; and
(c) to allocate, renew, suspend and cancel licences and to take other enforcement action under this Act; and
(d) to conduct investigations or hearings relating to the allocating of licences for community radio and community television services; and
(da) to conduct investigations as directed by the Minister under section 171; and
(e) to design and administer price‑based systems for the allocation of commercial television broadcasting licences and commercial radio broadcasting licences; and
(f) to collect any fees payable in respect of licences; and
(g) to conduct or commission research into community attitudes on issues relating to programs and datacasting content; and
(h) to assist broadcasting service providers and datacasting service providers to develop codes of practice that, as far as possible, are in accordance with community standards; and
(i) to monitor compliance with those codes of practice; and
(j) to develop program standards relating to broadcasting in Australia; and
(k) to monitor compliance with those standards; and
(l) to monitor and investigate complaints concerning broadcasting services (including national broadcasting services) and datacasting services; and
(m) to inform itself and advise the Minister on technological advances and service trends in the broadcasting industry and the datacasting industry; and
(n) to monitor, and to report to the Minister on, the operation of this Act.
159 Additional functions of the ABA
The ABA has such other functions as are conferred on it by this or another Act.
160 General obligations of the ABA
The ABA is to perform its functions in a manner consistent with:
(a) the objects of this Act and the regulatory policy described in section 4; and
(b) any general policies of the Government notified by the Minister under section 28 of the Commonwealth Authorities and Companies Act 1997; and
(c) any directions given by the Minister in accordance with this Act; and
(d) Australia’s obligations under the CER Trade in Services Protocol.
162 Minister may give directions to ABA
(1) The Minister may give written directions to the ABA as to the performance of its functions but, except as otherwise specified in this Act, directions are to be only of a general nature.
(2) The Minister must cause a copy of each direction given to the ABA to be published in the Gazette as soon as practicable after giving the direction.
163 ABA not otherwise subject to direction
Except as otherwise provided by this or another Act, the ABA is not subject to direction by or on behalf of the Commonwealth.
164 General powers of the ABA
(1) In addition to any other powers conferred on it by this or another Act, the ABA has power to do things that are necessary or convenient to be done for or in connection with the performance of its functions.
(2) The ABA has power:
(a) to acquire, hold and dispose of real and personal property; and
(b) to enter into contracts.
Division 3—Staff of the ABA
165 Staff
(1) The staff of the ABA are to be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the Chairperson and the APS employees assisting the Chairperson together constitute a Statutory Agency; and
(b) the Chairperson is the Head of that Statutory Agency.
(3) The ABA may make arrangements with an authority of the Commonwealth for the services of officers of that authority to be made available for the purposes of the ABA.
166 Consultants
The ABA may engage consultants to assist it in the performance of its functions.
Division 4—Administrative provisions
167 Administrative provisions
The administrative provisions set out in Schedule 3 apply to the ABA.
Part 13—Information gathering by the ABA
Division 1—Introduction
168 Obtaining of information by the ABA
(1) In informing itself on any matter relevant to its functions, the ABA:
(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 ABA adopts in informing itself on any matter relevant to its functions is to be that which the ABA 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 ABA not limited to matters discovered by investigation or hearing
In making a decision on any matter, the ABA 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 ABA
The ABA may conduct investigations for the purposes of the performance or exercise of any of its functions and powers.
171 Minister may direct ABA to conduct an investigation
(1) The Minister may direct the ABA 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 ABA 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 ABA may call for written submissions from the public
The ABA 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 ABA may give a notice in writing to a person summoning the person:
(a) to attend before a delegate of the ABA named in the notice to produce documents or to answer questions; or
(b) to provide documents or other information to the ABA;
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 ABA, 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 ABA 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 ABA, 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 ABA 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 ABA 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 ABA 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 ABA 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 ABA may cause a copy of a report on an investigation to be published.
(2) The Minister may direct the ABA to publish a report on an investigation directed by the Minister.
(3) The ABA 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 ABA 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
181 Interpretation—members to include associates
In this Division, member includes an associate member.
182 Power to hold hearings
The ABA may hold hearings for the purposes of the performance or exercise of any of its functions or powers.
183 Minister may direct ABA to hold a hearing
If the Minister is satisfied that the ABA should, in the interests of the due administration of this Act, hold a hearing in relation to any matter, the Minister may direct the ABA 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 ABA.
(2) The ABA 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 ABA may direct holding of conference
(1) The ABA 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 ABA or a member of the staff of the ABA 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 ABA permit.
(2) In holding a hearing, the ABA 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 ABA 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 ABA 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 ABA is to conduct a hearing in public, the ABA 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 ABA may order that evidence or other material presented to the hearing, or material in a submission lodged with the ABA under section 196, that is, in the opinion of the ABA, of a confidential nature not be published, or that its disclosure be restricted as directed by the ABA.
190 Directions as to private hearings
If a hearing or part of a hearing takes place in private, the ABA:
(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 ABA for conduct of hearings
The ABA is to be constituted for the purposes of a hearing by a panel consisting of such members as the Chairperson directs.
192 Presiding member
A panel conducting a hearing is to be presided over by the Chairperson or, if the Chairperson is not a member of the panel, by such member of the panel as the Chairperson directs.
193 Reconstitution of hearing panel
(1) If, during the course of a hearing:
(a) it appears to the Chairperson 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 Chairperson 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 ABA in relation to the conduct of a particular hearing may be exercised:
(a) by the panel conducting that hearing; or
(b) by the Chairperson; or
(c) by a member of the ABA authorised by the Chairperson 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 ABA 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 ABA 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 ABA any submissions in writing that the person wishes the ABA to take into account in relation to the subject matter of the hearing.
197 Evidence and submissions to be taken into account by ABA
The ABA 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 ABA 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 ABA has completed a hearing, the ABA 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 ABA must give a copy of the report to the Minister.
(3) The ABA 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 ABA 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.
(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.
(2A) Subsections (1) and (2) do not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).
(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 ABA, a member of the staff of the ABA, a person who is a member of the panel constituting a hearing or a person acting with the authority of the ABA 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 |
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 |
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 |
Refusal to approve higher percentage of foreign directors | Subsection 58(2) | 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 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 |
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 |
To enter a newspaper in the Register | Subsection 105(2) | The publisher |
Refusal to remove newspaper from the Register | Subsection 105(3) | The publisher |
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 ABA makes a decision that is reviewable under section 204, the ABA 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:
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.
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.
205B 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 provided under the licence; and
(b) make those accounts available for inspection by the ABA or an authorised officer when requested to do so; and
(c) within 6 months after 30 June in each year, give the ABA:
(i) an audited balance‑sheet and an audited profit and loss account, in a form approved by the ABA, in relation to the service 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 provided under the licence as the ABA directs and give copies of those records to the ABA when requested to do so.
(2) A licensee may, with the permission of the ABA, 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, an associate member or a member of the staff of the ABA, authorised by the ABA in writing for the purposes of this section.
205C Payment of licence fees
(1) If a commercial television broadcasting licensee or a commercial radio broadcasting 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 ABA, in a form approved by the ABA, of the manner of working out the amount paid.
(2) If:
(a) the ABA, having regard to the documents given to it under paragraph 205B(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 ABA 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 ABA 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 ABA 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, an additional fee is due and payable by the licensee as a penalty at the rate of 20% per annum on the amount unpaid, worked out from the due date, 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 ABA 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) an additional fee is due and payable by the licensee as a penalty, at the rate of 20% per annum on the amount unpaid, worked out from the day the notice was issued.
(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 ABA 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.
(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 subsection (1) or (2);
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 subsection (1) or (2);
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 or the Television Licence Fees Act 1964.
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 ABA may determine a fee under this Act, the amount of the fee so determined must not exceed the amount that the Minister or the ABA 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 ABA gives an opinion under section 21 or 74, the ABA must cause a copy of the opinion to be published in the Gazette.
(2) The ABA 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 ABA.
(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.
(3) A reference in this section to a re‑transmission does not include a reference to:
(a) a re‑transmission by a commercial broadcasting licensee of the programs transmitted by the licensee’s commercial broadcasting service; or
(b) a re‑transmission by a community broadcasting licensee of the programs transmitted by the licensee’s community broadcasting service; 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.
(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 Law.
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 121FH(3), section 136, subsection 138(2) or section 140 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.
216 Ministerial consultative and advisory bodies
The Minister may form consultative or advisory bodies to assist the Minister in the administration of this Act.
216A Schedule 4 (digital television broadcasting)
Schedule 4 has effect.
216B Schedule 5 (online services)
Schedule 5 has effect.
216C Schedule 6 (datacasting services)
Schedule 6 has effect.
216D Review of Schedules 4 and 6
(1) As soon as practicable after 1 January 2003 and before 1 January 2004, the Minister may cause to be conducted a review of the operation of Schedules 4 and 6.
(2) The Minister must cause to be prepared a report of a review under subsection (1).
(3) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.
216E Review of streamed Internet, audio and video content
(1) Before 1 January 2002, the Minister must cause to be conducted a review of whether, in the context of converging media technologies, streamed audio and video content obtainable on the Internet should be regarded as a broadcasting service.
(2) The Minister must cause to be prepared a report of a review under subsection (1).
(3) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.
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 ABA 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 ABA.
