Schedule 3—Administrative provisions applicable to the ABA
1 Terms and conditions applicable to members and associate members
The Minister is to determine in writing those terms and conditions of office of the members and associate members that are not set out in this Act.
2 Remuneration and allowances of members and associate members
(1) A member or an associate member is to be paid:
(a) such remuneration as is determined by the Remuneration Tribunal; or
(b) if no determination of that remuneration by the Tribunal is in operation—such remuneration as is prescribed.
(2) A member is to be paid such allowances as are prescribed.
(3) A member is to be paid such other benefits as the Minister determines in writing.
(4) Those other benefits may include benefits by way of financial or other assistance in connection with housing, transport, insurance, long service leave or superannuation.
3 Outside employment
(1) The Chairperson must not engage in paid employment outside the duties of his or her office without the approval of the Minister.
(2) The Deputy Chairperson and full‑time members and associate members must not engage in paid employment outside the duties of their offices without the approval of the Chairperson.
4 Leave of absence
(1) The Chairperson, the Deputy Chairperson and each full‑time member and associate member has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant leave of absence (other than recreation leave) to the Chairperson on such terms and conditions as to remuneration or otherwise as the Minister determines in writing.
(3) The Chairperson may grant leave of absence (other than recreation leave) to another member or an associate member on such terms and conditions as to remuneration or otherwise as the Chairperson determines in writing.
5 Acting appointments
(1) If:
(a) there is a vacancy in the office of Chairperson, whether or not an appointment has previously been made to the office; or
(b) the Chairperson is absent from duty or from Australia or is otherwise unable to perform the duties of the office of Chairperson;
the Deputy Chairperson is to act as the Chairperson during the vacancy, absence or inability.
(2) If the Deputy Chairperson is not available, the Minister may appoint another member to act as the Chairperson during the vacancy, absence or inability.
(3) If:
(a) there is a vacancy in the office of Deputy Chairperson, whether or not an appointment has previously been made to the office; or
(b) the Deputy Chairperson is absent from duty or from Australia or is otherwise unable to perform the duties of the office of Deputy Chairperson;
the Minister may appoint another member to act as the Deputy Chairperson during the vacancy, absence or inability.
(4) The Minister may appoint a person to act in the office of a member (other than the Chairperson or Deputy Chairperson):
(a) during a vacancy in the office, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the occupant of the office is absent from duty or from Australia or is otherwise unable to perform the duties of the office including a period when the member is acting as the Chairperson or Deputy Chairperson.
(5) A person appointed to act during a vacancy must not continue to act for more than 12 months.
(6) A person acting in an office under this clause is entitled to the same remuneration and allowances that are payable to the holder of the office in lieu of his or her own remuneration and allowances, but retains his or her own other benefits.
(7) Anything done by a person purporting to act under an appointment under this clause is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion for the person to act had not arisen or had ceased.
7 Disclosure of interests by other persons
(1) This clause applies where:
(a) an associate member or a member of the staff of the ABA is to take part or is taking part in deciding a matter before the ABA; and
(b) the person has or acquires a direct or indirect pecuniary or other interest that could conflict with the person’s duties in taking part in deciding the matter.
(2) The person must:
(a) immediately notify the ABA of the interest; and
(b) do whatever is necessary to avoid a conflict.
8 Resignation
A member or an associate member may resign from office by instrument in writing sent to the Minister.
9 Termination of appointment
(1) The Governor‑General may terminate the appointment of a member for misbehaviour or physical or mental incapacity.
(2) The Minister may terminate the appointment of an associate member for misbehaviour or physical or mental incapacity.
(3) If:
(a) the Chairperson, the Deputy Chairperson or a full‑time member or associate member becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or
(b) the Chairperson, the Deputy Chairperson or a full‑time member or associate member engages, except with the approval of the Minister, in paid employment outside the duties of his or her office; or
(c) the Chairperson, the Deputy Chairperson or a full‑time member or associate member is absent from duty, except on leave of absence granted under clause 4, for 14 consecutive days or for 28 days in any year; or
(d) a part‑time member is absent from 3 consecutive meetings of the ABA without the approval of the Chairperson; or
(e) a member or associate member fails, without reasonable excuse, to comply with clause 7 of this Schedule or section 27F or 27J of the Commonwealth Authorities and Companies Act 1997;
the person’s appointment may be terminated.
(4) A termination of appointment under subclause (3) is to be made:
(a) in the case of a member—by the Governor‑General; or
(b) in the case of an associate member—by the Minister.
(5) If an appointment is terminated under this clause, the Minister must cause to be tabled in the Parliament a statement setting out the reasons for that action.
10 Procedures that apply to meetings of the ABA
(1) The ABA is to hold such meetings as are necessary for the efficient performance of its functions.
(2) The Chairperson may convene a meeting at any time.
(3) The Chairperson is to preside at all meetings at which he or she is present.
(4) If the Chairperson is not present at a meeting:
(a) the Deputy Chairperson is to preside; or
(b) if the Deputy Chairperson is not present—the members present are to appoint a member to preside.
(5) At a meeting, 3 members constitute a quorum.
(6) Questions arising at a meeting are to be determined by a majority of the votes of the members present and voting.
(7) The person presiding at a meeting has a deliberative vote and, if necessary, also has a casting vote.
(8) The ABA may, subject to this Schedule, regulate proceedings at its meetings as it considers appropriate.
(9) The Chairperson may permit members to participate in a particular meeting, or some or all meetings, by telephone, closed‑circuit television or any other means of communication, and a member who so participates is to be regarded as being present at the meeting.
11 Resolutions without meetings
If the ABA so determines, a resolution is to be taken to have been passed at a meeting of the ABA if:
(a) without meeting, a majority of the number of members indicate agreement with the resolution in accordance with the method determined by the ABA; and
(b) that majority would, if present at a meeting of the ABA, have constituted a quorum under subclause 10(5); and
(c) all members were informed of the proposed resolution, or reasonable efforts had been made to inform all members of the proposed resolution.
12 Liability to taxation
(1) Subject to subclause (3), the ABA is not subject to taxation under any law of the Commonwealth or of a State or Territory.
(2) Sales tax is not payable by the ABA, or by any other person, on goods that are for use by the ABA.
(3) The regulations may provide that subclause (1) or (2) does not apply to taxation under a specified law.
15 Money of the ABA
(1) There is payable to the ABA such money as is appropriated by the Parliament for the purposes of the ABA.
(2) The Minister for Finance may give directions as to the amounts in which, and the times at which, that money is to be paid to the ABA.
16 Application of money
(1) Money of the ABA may only be applied:
(a) in discharge of the expenses or liabilities incurred by the ABA in connection with the performance of its functions or the exercise of its powers; or
(b) in payment of remuneration or allowances payable under this Act; or
(c) in making any other payments required to be made under this Act.
(2) Subclause (1) does not prevent investment of surplus money of the ABA under section 18 of the Commonwealth Authorities and Companies Act 1997.
17 Limitation on expenditure on contracts
The ABA must not, without the approval of the Minister, enter into a contract under which the ABA is to pay or receive an amount exceeding $1,000,000 or such greater amount as is prescribed.
18 Delegation
(1) Subject to subclause (2), the ABA may, in writing, delegate all or any of its powers to:
(a) a member; or
(b) an associate member; or
(c) a member of the staff of the ABA.
(2) The ABA is not to delegate the power to:
(a) cancel or suspend licences; or
(b) decide that a person is not suitable to be allocated or to continue to hold a licence; or
(c) impose, vary or revoke a condition on a licence (other than a timing condition on a temporary community broadcasting licence); or
(d) determine, vary or revoke a program standard; or
(e) determine or vary priorities under section 24; or
(f) prepare or vary frequency allotment plans under section 25; or
(g) prepare or vary licence area plans under section 26; or
(h) give an opinion under section 21 or 74; or
(i) approve or refuse to approve temporary breaches under section 67; or
(ia) make, vary or revoke a determination under section 103L; or
(j) issue, or extend the time for compliance with, a notice (other than a notice under Schedule 5); or
(k) refer a matter under this Act to the Director of Public Prosecutions; or
(l) initiate a hearing; or
(m) formulate, vary or revoke a scheme under clause 51 of Schedule 5; or
(n) determine, vary or revoke an industry standard under Schedule 5; or
(o) determine, vary or revoke an online provider determination under Schedule 5; or
(p) make, vary or revoke an instrument that is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901; or
(q) make or vary a digital channel plan under a scheme in force under clause 6 of Schedule 4; or
(r) make or vary a digital channel plan under a scheme in force under clause 19 of Schedule 4.
Schedule 4—Digital television broadcasting
Note: See section 216A.
Part 1—Introduction
1 Simplified outline
The following is a simplified outline of this Schedule:
• The ABA is to formulate schemes for the conversion, over time, of the transmission of television broadcasting services from analog mode to digital mode.
• There is to be a simulcast period throughout which broadcasters are to transmit their television programs in both analog mode and SDTV digital mode.
• At the end of the simulcast period, analog transmissions are to cease.
• Broadcasters must meet standards relating to quotas for the transmission of programs in HDTV digital mode.
• Broadcasters must meet standards relating to captioning of television programs for the deaf and hearing impaired.
• Broadcasters will be allowed to use spare transmission capacity on digital transmission channels to provide datacasting services.
• Owners and operators of broadcasting transmission towers must give digital broadcasters and datacasters access to the towers for the purposes of installing or maintaining digital transmitters.
• There are to be reviews before 1 January 2000, 1 January 2004 and 31 December 2005 of certain elements of the digital television regulatory regime.
2 Definitions
In this Schedule, unless the contrary intention appears:
AAT means the Administrative Appeals Tribunal.
ACA means the Australian Communications Authority.
broadcasting transmission tower means:
(a) a tower; or
(b) a pole; or
(c) a mast; or
(d) a similar structure;
used to supply:
(e) a broadcasting service by means of radiocommunications using the broadcasting services bands; or
(f) a datacasting service provided under, and in accordance with the conditions of, a datacasting licence.
commercial television broadcasting service means a commercial broadcasting service that provides television programs.
commercial television conversion scheme means a scheme under clause 6.
coverage area means:
(a) a metropolitan coverage area; or
(b) a regional coverage area.
designated teletext service means a teletext service provided by a commercial television broadcasting licensee, where:
(a) the licensee provided the service throughout the 2‑year period ending immediately before the commencement of Schedule 6; and
(b) the service remains substantially the same as the service provided throughout that 2‑year period.
HDTV digital mode has the meaning given by clause 4A.
licence area means a licence area for a commercial television broadcasting licence.
metropolitan coverage area means an area that corresponds to a metropolitan licence area.
metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:
(a) New South Wales; or
(b) Victoria; or
(c) Queensland; or
(d) Western Australia; or
(e) South Australia.
multi‑channelled national television broadcasting service has the meaning given by clause 5A.
national broadcasting service does not include a broadcasting service provided under the Parliamentary Proceedings Broadcasting Act 1946.
national radio broadcasting service means a national broadcasting service that provides radio programs.
national television broadcasting service means a national broadcasting service that provides television programs.
national television conversion scheme means a scheme under clause 19.
radiocommunication has the same meaning as in the Radiocommunications Act 1992.
regional coverage area means an area that corresponds to a regional licence area.
regional licence area means a licence area that is not a metropolitan licence area.
remote coverage area means an area that corresponds to a remote licence area.
remote licence area has the meaning given by clause 5.
SDTV digital mode has the meaning given by clause 4B.
simulcast period:
(a) in relation to a commercial television broadcasting service where the licence area concerned is not a remote licence area—has the meaning given by paragraph 6(3)(c) of this Schedule; and
(b) in relation to a commercial television broadcasting service where the licence area concerned is a remote licence area—has the meaning given by subclause 6(7) of this Schedule; and
(c) in relation to a national television broadcasting service where the coverage area concerned is not a remote coverage area—has the meaning given by paragraph 19(3)(c) of this Schedule; and
(d) in relation to a national television broadcasting service where the coverage area concerned is a remote coverage area—has the meaning given by subclause 19(7) of this Schedule.
television broadcasting service means:
(a) a commercial television broadcasting service; or
(b) a national television broadcasting service.
transmitter licence has the same meaning as in the Radiocommunications Act 1992.
3 Analog mode
For the purposes of this Schedule, a program or service is broadcast or transmitted in analog mode if the program or service is broadcast or transmitted using an analog modulation technique.
4 Digital mode
For the purposes of this Schedule, a program or service is broadcast or transmitted in digital mode if the program or service is broadcast or transmitted using a digital modulation technique.
4A HDTV digital mode
For the purposes of this Schedule, a television program or a television broadcasting service is broadcast or transmitted in HDTV digital mode if the program or service is broadcast or transmitted in digital mode in a high definition format.
4B SDTV digital mode
For the purposes of this Schedule, a program or a television broadcasting service is broadcast or transmitted in SDTV digital mode if the program or service is broadcast or transmitted in digital mode in a standard definition format.
5 Remote licence area
(1) The ABA may, by writing, determine that a specified licence area is a remote licence area for the purposes of this Schedule.
(2) A determination under this clause has effect accordingly.
(3) A determination under this clause is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
5A Multi‑channelled national television broadcasting service
(1) For the purposes of this Schedule, a broadcasting service is a multi‑channelled national television broadcasting service if:
(a) the service provides television programs; and
(b) either:
(i) the service is provided by the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or
(ii) the service is provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; and
(c) the service is transmitted in digital mode using multi‑channelling transmission capacity; and
(d) the only programs delivered by the service are programs to which subclause (2) applies; and
(e) the service is promoted as a service that is distinct from any other broadcasting service provided by the Corporation concerned; and
(f) the service is neither a subscription broadcasting service nor a subscription narrowcasting service; and
(g) the Corporation concerned has given the Minister a written notice electing that this subclause apply to the service; and
(h) if the Corporation concerned transmits the service in a particular coverage area:
(i) the Corporation transmits another broadcasting service in that coverage area; and
(ii) the other service is a national television broadcasting service; and
(iii) clause 19 applies to the other service during the simulcast period for that coverage area.
(2) This subclause applies to the following television programs:
(a) a program (including a news bulletin or a current affairs program) that deals wholly or principally with regional matters;
(b) an educational program;
(c) a science program;
(d) a religious program;
(e) a health program;
(f) an arts‑related program;
(g) a culture‑related program;
(h) a financial, market or business information bulletin;
(i) a program that consists of:
(i) the proceedings of, or the proceedings of a committee of, a Parliament; or
(ii) the proceedings of a court or tribunal in Australia; or
(iii) the proceedings of an official inquiry or Royal Commission in Australia; or
(iv) a hearing conducted by a body established for a public purpose by a law of the Commonwealth or of a State or Territory;
(j) a public policy program;
(k) a foreign‑language news bulletin;
(l) a program about community‑based multicultural or indigenous activities;
(m) a children’s program;
(n) a history program;
(o) a program that:
(i) is produced by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation; and
(ii) deals with international news (including analysis of items of international news);
(p) a national program about rural affairs;
(q) an information‑only program;
(r) a stand‑alone international social documentary;
(s) a stand‑alone social documentary that is produced by the Special Broadcasting Service Corporation;
(t) a subtitled foreign‑language program;
(u) an occasional stand‑alone drama program;
(v) incidental matter.
(3) In this clause:
drama program has the same meaning as in section 103B.
educational program has the same meaning as in Schedule 6 (disregarding subclauses 3(2) to (7) (inclusive) of Schedule 6).
financial, market or business information bulletin has the same meaning as in Schedule 6.
foreign‑language news bulletin means a news bulletin the audio component of which is wholly in a language other than English (for this purpose, disregard minor and infrequent uses of the English language).
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.
information‑only program has the same meaning as in Schedule 6 (disregarding subclauses 4(2) to (7) (inclusive) of Schedule 6).
public policy program means a program that consists of a lecture, speech, debate or forum, where:
(a) the lecture, speech, debate or forum deals wholly or principally with one or more matters of public policy; and
(b) there is no editing of the substance of the lecture, speech, debate or forum; and
(c) if there is any analysis, commentary or discussion about the substance of the lecture, speech, debate or forum—the analysis, commentary or discussion has a balanced presentation of points of view.
subtitled foreign‑language program means a subtitled program the audio content of which is wholly in a language other than English (for this purpose, disregard minor and infrequent uses of the English language).
Part 2—Commercial television
6 Commercial television conversion scheme
(1) As soon as practicable after the commencement of this clause, the ABA must, by writing, formulate a scheme (the commercial television conversion scheme) for the conversion, over time, of the transmission of commercial television broadcasting services from analog mode to digital mode.
(2) The commercial television conversion scheme is to be divided into the following Parts:
(a) Part A, which is to deal with licence areas that are not remote licence areas;
(b) Part B, which is to deal with remote licence areas.
Policy objectives
(3) Part A of the commercial television conversion scheme must be directed towards ensuring the achievement of the following policy objectives:
(a) the objective that each holder of a commercial television broadcasting licence for a metropolitan licence area is required to commence transmitting the commercial television broadcasting service concerned in SDTV digital mode in that area on 1 January 2001;
(b) the objective that each holder of a commercial television broadcasting licence for a regional licence area is required to commence transmitting the commercial television broadcasting service concerned in SDTV digital mode in that area by such date during the period:
(i) beginning on 1 January 2001; and
(ii) ending immediately before 1 January 2004;
as the ABA determines under the scheme;
(c) the objective that there should be a transitional period for a licence area, that is:
(i) to be known as the simulcast period; and
(ii) to run for 8 years or for such longer period as is prescribed in relation to that area; and
(iii) in the case of a metropolitan licence area—to begin on 1 January 2001; and
(iv) in the case of a regional licence area—to begin on the date determined in relation to that area in accordance with paragraph (b);
throughout which the holder of a commercial television broadcasting licence for that area is required to transmit simultaneously the commercial television broadcasting service concerned in both analog mode and SDTV digital mode in that area;
(d) the objective that, throughout the simulcast period for a licence area, the holder of a commercial television broadcasting licence for that area should be authorised, under one or more transmitter licences, to use one or more additional channels to transmit the commercial television broadcasting service concerned in digital mode in that area;
(e) the objective that each additional channel should occupy 7 MHz of bandwidth;
(f) the objective that, as soon as is practicable after the start of the simulcast period for a licence area, and throughout the remainder of that period, the transmission of a commercial television broadcasting service in SDTV digital mode in that area should achieve the same level of coverage and potential reception quality as is achieved by the transmission of that service in analog mode in that area;
(g) the objective that, during the simulcast period for a licence area, there should, as far as is practicable, be co‑location of:
(i) transmitters used by the holder of a commercial television broadcasting licence for that area to transmit the commercial television broadcasting service concerned in digital mode in that area; and
(ii) transmitters used by the holder to transmit that service in analog mode in that area;
(h) the objective that, at the end of the simulcast period for a licence area, all transmissions of commercial television broadcasting services in analog mode in that area are to cease;
(ha) the objective that, after the end of the simulcast period for a licence area, each holder of a commercial television broadcasting licence for that area is to transmit the commercial television broadcasting service concerned in digital mode in that area using such channel or channels as the ABA allots under the scheme or a digital channel plan, having regard to:
(i) the need to plan the most efficient use of the spectrum; and
(ii) the other relevant policy objectives of the scheme;
(j) the objective that, after the end of the simulcast period for a licence area, the transmission of a commercial television broadcasting service in SDTV digital mode in that area should achieve the same level of coverage and potential reception quality as was achieved by the transmission of that service in analog mode in that area immediately before the end of that period;
(k) the objective that holders of commercial television broadcasting licences be permitted to use any spare transmission capacity that is available on the digital transmission channels for the purpose of the transmission of either or both of the following:
(i) datacasting services provided under, and in accordance with the conditions of, datacasting licences;
(ii) designated teletext services;
(l) the objective that the ABA is to consult holders of commercial television broadcasting licences about the implementation of the scheme;
(m) the objective that, if the implementation of the scheme affects particular broadcasting transmission towers, the ABA is to consult the owners and operators of those towers;
(n) the objective that, in allotting channels under the scheme or a digital channel plan, the ABA must have regard to:
(i) the need to plan the most efficient use of the spectrum; and
(ii) the other relevant policy objectives of the scheme.
(4) Subclause (3) does not prevent the commercial television conversion scheme from allowing the holder of a commercial television broadcasting licence for a regional licence area to transmit the commercial television broadcasting service concerned in digital mode in that area during the whole or a part of the period:
(a) beginning on 1 January 2001; and
(b) ending immediately before the start of the simulcast period for that area;
so long as that transmission complies with such requirements as are ascertained in accordance with the scheme.
(5) Subclause (3) does not prevent Part A of the commercial television conversion scheme from allowing the holder of a commercial television broadcasting licence for a licence area to transmit, on a test basis, the commercial television broadcasting service concerned in digital mode in that area before the start of the simulcast period for that area, so long as that transmission:
(a) complies with such requirements as are ascertained in accordance with that Part of the scheme; and
(b) occurs during a period ascertained in accordance with that Part of the scheme.
(5A) If:
(a) the holder of a commercial television broadcasting licence holds another commercial television broadcasting licence; and
(b) the other licence was allocated under section 38A or 38B; and
(c) the licences relate to the same licence area (within the meaning of whichever of those sections is applicable); and
(d) at or about the time when the other licence was allocated, the holder gave the ABA a written notice electing that this subclause apply to both of the commercial television broadcasting services concerned;
then:
(e) paragraphs (3)(d), (e) and (ha) do not apply to either of the commercial television broadcasting services concerned; and
(f) Part A of the commercial television conversion scheme must be directed towards ensuring the achievement of the objectives set out in subclause (5B).
(5B) The objectives mentioned in paragraph (5A)(f) are as follows:
(a) the objective that, throughout the simulcast period for the licence area, the holder should be authorised, under one or more transmitter licences, to use one or more particular channels to transmit both of the commercial television broadcasting services concerned in digital mode in that area using multi‑channelling transmission capacity on each channel;
(b) the objective that each channel should occupy 7 MHz of bandwidth;
(c) the objective that, after the end of the simulcast period for the licence area, the holder is to transmit both of the commercial television broadcasting services concerned in digital mode in that area using multi‑channelling transmission capacity of a channel or channels allotted by the ABA under the scheme or a digital channel plan, having regard to:
(i) the need to plan the most efficient use of the spectrum; and
(ii) the other relevant policy objectives of the scheme.
(5C) Paragraphs (3)(c), (d), (e), (f), (h) and (j) do not apply to a commercial television broadcasting service provided under a licence allocated under section 38B.
Note: Under section 38B, it is a condition of the licence that the service may only be transmitted in digital mode.
(5D) For the purposes of paragraphs (3)(ha) and (n) and (5B)(c), in determining the most efficient use of the spectrum, the ABA is to have regard to:
(a) the need for spectrum to be made available for allocation for the purposes of the transmission of datacasting services under, and in accordance with the conditions of, datacasting licences; and
(b) such other matters as the ABA considers relevant.
(6) The objective mentioned in paragraph (3)(g) (which deals with co‑location of transmitters) does not prevent Part A of the commercial television conversion scheme from making provision for the location of digital transmitters otherwise than as mentioned in that paragraph, where the ABA is satisfied that an alternative location is appropriate having regard to:
(a) the remaining objectives set out in subclause (3); and
(b) the costs that are likely to be incurred by the licensee concerned; and
(c) such other matters (if any) as the ABA considers relevant.
Remote licence areas—start‑up of digital transmission
(6A) Part B of the commercial television conversion scheme must be directed towards ensuring the achievement of the policy objective that each holder of a commercial television broadcasting licence for a remote licence area is required to commence transmitting the commercial television broadcasting service concerned in SDTV digital mode in that area by such date as the ABA determines under the scheme.
Remote licence areas—simulcast period
(7) Part B of the commercial television conversion scheme may make provision for a transitional period for a specified remote licence area, that is to be known as the simulcast period, throughout which the holder of a commercial television broadcasting licence for that area is required to transmit simultaneously the commercial television broadcasting service concerned in both analog mode and SDTV digital mode in that area.
(7A) The simulcast period for a particular remote licence area:
(a) is to begin on the date determined in relation to that area in accordance with subclause (6A); and
(b) is to run for such period as the ABA determines under the scheme.
Simulcasting
(8) In determining, for the purposes of paragraph (3)(c) and subclause (7), whether the holder of a commercial television broadcasting licence transmits simultaneously the commercial television broadcasting service concerned in both analog mode and SDTV digital mode:
(a) if a relevant determination is in force under subclause (9)—ignore any advertising or sponsorship matter covered by the determination, so long as the licensee complies with such conditions (if any) as are specified in the determination; and
(b) if a relevant determination is in force under subclause (10)—ignore any television programs covered by the determination, so long as the licensee complies with such conditions (if any) as are specified in the determination; and
(c) ignore any digital program‑enhancement content (as defined by subclause (14)); and
(d) ignore a particular television program transmitted using multi‑channelling transmission capacity, where:
(i) the program is a scheduled program that provides live coverage of a designated event (as defined by subclause (20)); and
(ii) the other television program broadcast using that multi‑channelling transmission capacity is a regularly scheduled news program; and
(iii) the end of the designated event is delayed for reasons that are not within the control of the licensee or of the person (if any) who supplied the first‑mentioned program to the licensee (either directly or indirectly through one or more interposed persons); and
(iv) the sole purpose of the use of the multi‑channelling transmission capacity is to allow viewers of the SDTV version of the commercial television broadcasting service to choose between viewing the regularly scheduled news program and viewing so much of the designated event as overlaps the other television program; and
(e) ignore an electronic program guide (as defined by subclause (24)).
(8A) For the purposes of this Act (other than paragraph (3)(c) or subclauses (7), (8) and (11) of this clause or Division 2 of Part 4 of this Schedule) and any other law of the Commonwealth, if the holder of a commercial television broadcasting licence transmits matter that is required to be ignored by paragraph (8)(c), (d) or (e) of this clause, that matter is taken to be part of the commercial television broadcasting service concerned.
(9) The ABA may, by writing, determine that paragraph (8)(a) applies to specified advertising or sponsorship matter transmitted by a specified commercial television broadcasting licensee during a specified period. The specified advertising or sponsorship matter may consist of all advertising or sponsorship matter transmitted by the licensee concerned. The specified period may consist of the simulcast period for the licence area concerned.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(10) The ABA may, by writing, determine that paragraph (8)(b) applies to specified television programs transmitted by a specified commercial television broadcasting licensee during a specified period.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(11) The ABA must not make a determination under subclause (9) or (10) unless the ABA is satisfied that, if it were assumed that the determination were made, the version of the commercial television broadcasting service transmitted in SDTV digital mode will be substantially the same as the version of the service transmitted in analog mode.
(12) A determination under subclause (9) or (10) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(13) A reference in this clause to advertising or sponsorship matter is a reference to advertising or sponsorship matter (whether or not of a commercial kind).
Digital program‑enhancement content
(14) For the purposes of this clause, digital program‑enhancement content is content:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;
where:
(g) the content is transmitted using a digital modulation technique; and
(h) the sole purpose of the transmission of the content is to enhance a television program (the primary program); and
(i) the subject matter of the content is closely and directly linked to the subject matter of the primary program; and
(j) the licensee transmits simultaneously the content and the primary program; and
(k) either:
(i) the licensee transmits simultaneously the primary program in both analog mode and SDTV digital mode; or
(ii) the primary program is covered by a determination under subclause (9) or (10).
Note: For example, if the primary program is live coverage of a tennis match, the digital program‑enhancement content could consist of any or all of the following:
(a) the match from different camera angles;
(b) each player’s results in past matches;
(c) video highlights from those past matches;
(d) each player’s ranking and career highlights.
Designated event
(20) For the purposes of this clause, a designated event is:
(a) a sporting event; or
(b) a declared designated event (as defined by subclause (21)).
(21) The ABA may, by writing, determine that a specified event is a declared designated event for the purposes of this clause.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(22) A determination under subclause (21) has effect accordingly.
(23) A determination under subclause (21) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Electronic program guide
(24) For the purposes of this clause, an electronic program guide is matter transmitted using a uniform digital modulation technique, where the matter consists of no more than:
(a) a schedule of the television programs provided by:
(i) the commercial television broadcasting service transmitting the matter; or
(ii) all of the commercial television broadcasting services and all of the national television broadcasting services; or
(b) a combination of:
(i) a schedule covered by paragraph (a); and
(ii) items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief and in the form of text; or
(c) a combination of:
(i) a schedule covered by paragraph (a); and
(ii) a facility the sole purpose of which is to enable an end‑user to select, and commence viewing, one or more of the programs in the schedule; or
(d) a combination of:
(i) a schedule covered by paragraph (a); and
(ii) items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief and in the form of text; and
(iii) a facility the sole purpose of which is to enable an end‑user to select, and commence viewing, one or more of the programs in the schedule.
7 Scheme may confer administrative powers on the ABA
The commercial television conversion scheme may make provision with respect to a matter by conferring on the ABA a power to make a decision of an administrative character.
7A Scheme may confer power to make digital channel plans
(1) The commercial television conversion scheme may provide for the ABA to make one or more plans (digital channel plans) that:
(a) allot channels to holders of commercial television broadcasting licences; and
(b) set out any technical limitations on the use of a particular channel that the ABA believes should be shown in the plan; and
(c) set out whether the use of a channel depends on any event or circumstances described in the plan.
(2) The commercial television conversion scheme may provide that a digital channel plan may include other matters.
(3) The commercial television conversion scheme may provide for the ABA to vary a digital channel plan.
8 Transmitter licences
Grant of additional spectrum for digital transmission
(1) The commercial television conversion scheme must make provision for requiring the ACA to issue transmitter licences authorising transmissions of commercial television broadcasting services in digital mode.
Return of spectrum if digital transmission does not begin
(2) Part A of the commercial television conversion scheme must make provision for requiring the holder of a commercial television broadcasting licence to surrender one or more transmitter licences authorising digital transmission if:
(a) the holder does not commence digital transmission as mentioned in paragraph 6(3)(a) or (b) of this Schedule; and
(b) the holder does not satisfy the ABA that there are exceptional circumstances.
Return of spectrum if digital transmission does not continue throughout the simulcast period
(3) Part A of the commercial television conversion scheme must make provision for requiring the holder of a commercial television broadcasting licence to surrender one or more transmitter licences authorising digital transmission if:
(a) the holder commences digital transmission as mentioned in paragraph 6(3)(a) or (b) of this Schedule; and
(b) the holder ceases digital transmission during the simulcast period for the licence area concerned; and
(c) under the scheme, the ABA gives the holder a written direction to:
(i) resume digital transmission in that area within the period specified in the direction (being a period that is not longer than one month); and
(ii) continue digital transmission throughout the simulcast period for that area; and
(d) the holder does not comply with a direction referred to in paragraph (c); and
(e) the holder does not satisfy the ABA that there are exceptional circumstances.
Return of spectrum at end of simulcast period
(4) If, at the end of the simulcast period for a licence area, the holder of a commercial television broadcasting licence for the area holds one or more transmitter licences that authorised the transmission of the commercial television broadcasting service concerned in that area, Part A of the commercial television conversion scheme must make provision for:
(a) requiring the holder to surrender the transmitter licence or licences, with effect from the end of the simulcast period; and
(b) requiring the ACA to issue, with effect from the end of the simulcast period, one or more transmitter licences that authorise the transmission of the commercial television broadcasting service concerned using the channel or channels mentioned in whichever of the following provisions is applicable:
(i) paragraph 6(3)(ha) of this Schedule;
(ii) paragraph 6(5B)(c) of this Schedule.
Return of spectrum if format and HDTV standards contravened
(7) Part A of the commercial television conversion scheme must make provision for requiring the holder of a commercial television broadcasting licence for a licence area to surrender the transmitter licence or licences that authorised the transmission of the commercial television broadcasting service concerned in digital mode in that area if:
(a) the holder contravenes a standard under subclause 37(1) or 37A(1) or 37E(1) or (3); and
(b) under the scheme, the ABA gives the holder a written direction to comply with that standard within the period specified in the direction (being a period that is not longer than one month); and
(c) the holder does not comply with a direction referred to in paragraph (b); and
(d) the holder does not satisfy the ABA that there are exceptional circumstances.
(8) Subclause (7) does not prevent the commercial television conversion scheme from making provision for requiring the ACA to issue a transmitter licence to replace a licence that was surrendered on the grounds of a contravention of a standard under subclause 37A(1) or 37E(1) or (3). However, the amount of transmission capacity covered by the replacement licence must be less than the amount of transmission capacity covered by the surrendered licence.
Remote licence areas
(10) Part B of the commercial television conversion scheme may make provision for requiring the holder of a commercial television broadcasting licence to surrender one or more transmitter licences authorising analog transmission or authorising digital transmission if the holder does not comply with:
(a) a specified requirement of that Part of the scheme; or
(b) a standard applicable to the holder under subclause 37B(1) or 37C(1) or 37G(1) or (2).
(10A) Subclause (10) does not prevent the commercial television conversion scheme from making provision for requiring the ACA to issue a transmitter licence to replace a licence that was surrendered on the grounds of a contravention of a standard under subclause 37C(1) or 37G(1) or (2). However, the amount of transmission capacity covered by the replacement licence must be less than the amount of transmission capacity covered by the surrendered licence.
(11) Part B of the commercial television conversion scheme may make provision for requiring the ACA to vary the conditions of a transmitter licence that authorised analog transmission of a commercial television broadcasting service in a remote licence area so as to ensure that the licence authorises digital transmission of that service in that area.
9 Submission of implementation plans to the ABA
(1) The commercial television conversion scheme must make provision for requiring holders of commercial television broadcasting licences to prepare, and submit to the ABA, one or more implementation plans relating to digital transmission, where the implementation plans are in accordance with the scheme.
(2) The commercial television conversion scheme may provide for variation of implementation plans submitted to the ABA by holders of commercial television broadcasting licences.
10 Amendment of certain plans and guidelines
(1) The commercial television conversion scheme may amend the frequency allotment plan or a licence area plan.
(2) The commercial television conversion scheme may amend technical planning guidelines in force under section 33.
(3) Subclauses (1) and (2) do not limit the ABA’s powers under sections 25, 26 and 33.
11 Reviews and reports
The commercial television conversion scheme may provide for the ABA to conduct reviews, and report to the Minister, on specified matters.
12 Ancillary or incidental provisions
The commercial television conversion scheme may contain such ancillary or incidental provisions as the ABA considers appropriate.
13 ABA to have regard to datacasting allocation power
(1) In formulating or varying the commercial television conversion scheme, the ABA must have regard to its power under subsection 34(3) (which deals with datacasting allocation).
(2) Subclause (1) does not limit the matters to which the ABA may have regard.
14 ABA to have regard to special circumstances that apply in remote licence areas
(1) In formulating or varying Part B of the commercial television conversion scheme, the ABA must have regard to the special circumstances that apply to the transmission of commercial television broadcasting services in remote licence areas.
(2) Subclause (1) does not limit the matters to which the ABA may have regard.
15 Minister may give directions to the ABA
(1) In formulating or varying the commercial television conversion scheme, the ABA must comply with any written directions given to it by the Minister under this subclause.
(2) A direction under subclause (1) may be of a general or specific nature.
(3) The Minister must arrange for a copy of a direction under subclause (1) to be published in the Gazette within 14 days after the direction is given.
16 Variation of scheme
(1) The commercial television conversion scheme may be varied, but not revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901.
(2) Subclause (1) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to other instruments under this Act.
17 Scheme to be a disallowable instrument
An instrument under subclause 6(1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
18 Processes to be public
In formulating or varying the commercial television conversion scheme, the ABA must make provision for:
(a) public consultation; and
(b) consultation with holders of commercial television broadcasting licences; and
(c) consultation with national broadcasters; and
(d) consultation with the ACA; and
(e) consultation with owners and operators of broadcasting transmission towers.
Part 3—ABC/SBS television
19 National television conversion scheme
(1) As soon as practicable after the commencement of this clause, the ABA must, by writing, formulate a scheme (the national television conversion scheme) for the conversion, over time, of the transmission of national television broadcasting services from analog mode to digital mode.
Note: Under clause 32, the scheme does not take effect until approved by the Minister.
(2) The national television conversion scheme is to be divided into the following Parts:
(a) Part A, which is to deal with coverage areas that are not remote coverage areas;
(b) Part B, which is to deal with remote coverage areas.
Policy objectives
(3) Part A of the national television conversion scheme must be directed towards ensuring the achievement of the following policy objectives:
(a) the objective that each national broadcaster is required to commence transmitting the national television broadcasting service concerned in SDTV digital mode in a metropolitan coverage area by such date as is ascertained in accordance with an implementation plan that was given by the broadcaster, and is in force, under clause 20;
(b) the objective that each national broadcaster is required to commence transmitting the national television broadcasting service concerned in SDTV digital mode in a regional coverage area by such date as is ascertained in relation to that area in accordance with an implementation plan that was given by the broadcaster, and is in force, under clause 20;
(c) the objective that there should be a transitional period for a coverage area, that is:
(i) to be known as the simulcast period; and
(ii) to begin on the date mentioned in whichever of paragraphs (a) and (b) is applicable; and
(iii) to end at the end of the simulcast period (within the meaning of paragraph 6(3)(c) of this Schedule) for the licence area that corresponds to that coverage area;
throughout which a national broadcaster is required to transmit simultaneously the national television broadcasting service concerned in both analog mode and SDTV digital mode in that coverage area;
(d) the objective that, throughout the simulcast period for a coverage area, each national broadcaster should be authorised, under one or more transmitter licences, to use one or more channels to transmit the national television broadcasting service concerned in digital mode in that area;
(e) the objective that each additional channel should occupy 7 MHz of bandwidth;
(f) the objective that, as soon as is practicable after the start of the simulcast period for a coverage area, and throughout the remainder of that period, the transmission of a national television broadcasting service in SDTV digital mode in that area should achieve the same level of coverage and potential reception quality as is achieved by the transmission of that service in analog mode in that area;
(g) the objective that, during the simulcast period for a coverage area, there should, as far as is practicable, be co‑location of:
(i) transmitters used by a national broadcaster to transmit the national television broadcasting service concerned in digital mode in that area; and
(ii) transmitters used by the national broadcaster to transmit that service in analog mode in that area;
(h) the objective that, at the end of the simulcast period for a coverage area, all transmissions of national television broadcasting services in analog mode in that area are to cease;
(ha) the objective that, after the end of the simulcast period for a coverage area, each national broadcaster is to transmit the national broadcasting service concerned in digital mode in that area using such channel or channels as the ABA allots under the scheme or a digital channel plan, having regard to:
(i) the need to plan the most efficient use of the spectrum; and
(ii) the other policy objectives of the scheme;
(j) the objective that, after the end of the simulcast period for a coverage area, the transmission of a national television broadcasting service in SDTV digital mode in that area should achieve the same level of coverage and potential reception quality as was achieved by the transmission of that service in analog mode in that area immediately before the end of that period;
(k) the objective that national broadcasters be permitted to use any spare transmission capacity that is available on the digital transmission channels for the purpose of the transmission of datacasting services provided under, and in accordance with the conditions of, datacasting licences or for the purpose of the transmission of national radio broadcasting services;
(l) the objective that the ABA is to consult with national broadcasters about the implementation of the scheme;
(m) the objective that, if the implementation of the scheme affects particular broadcasting transmission towers, the ABA is to consult the owners and operators of those towers;
(n) the objective that, in allotting channels under the scheme or a digital channel plan, the ABA must have regard to:
(i) the need to plan the most efficient use of the spectrum; and
(ii) the other relevant policy objectives of the scheme.
(3A) The ABA must consult with national broadcasters about the implementation of the scheme.
(4) Subclause (3) does not prevent the national television conversion scheme from allowing a national broadcaster to transmit the national television broadcasting service concerned in digital mode in a regional coverage area during the whole or a part of the period:
(a) beginning on 1 January 2001; and
(b) ending immediately before the start of the simulcast period for that area;
so long as that transmission complies with such requirements as are ascertained in accordance with the scheme.
(5) Subclause (3) does not prevent Part A of the national television conversion scheme from allowing a national broadcaster to transmit, on a test basis, the national television broadcasting service concerned in digital mode in a coverage area before the start of the simulcast period for that area, so long as that transmission:
(a) complies with such requirements as are ascertained in accordance with that Part of the scheme; and
(b) occurs during a period ascertained in accordance with that Part of the scheme.
(5A) For the purposes of paragraphs (3)(ha) and (n), in determining the most efficient use of the spectrum, the ABA is to have regard to:
(a) the need for spectrum to be made available for allocation for the purposes of the transmission of datacasting services under, and in accordance with the conditions of, datacasting licences; and
(b) such other matters as the ABA considers relevant.
(6) The objective mentioned in paragraph (3)(g) (which deals with co‑location of transmitters) does not prevent Part A of the national television conversion scheme from making provision for the location of digital transmitters otherwise than as mentioned in that paragraph, where the ABA is satisfied that an alternative location is appropriate having regard to:
(a) the remaining objectives set out in subclause (3); and
(b) the costs that are likely to be incurred by the national broadcaster concerned; and
(c) such other matters (if any) as the ABA considers relevant.
Remote coverage areas—start‑up of digital transmission
(6A) Part B of the national television conversion scheme must be directed towards ensuring the achievement of the policy objective that each national broadcaster is required to commence transmitting the national television broadcasting service concerned in SDTV digital mode in a remote coverage area by such date as is ascertained in relation to that area in accordance with an implementation plan that was given by the broadcaster, and is in force, under clause 20.
Remote coverage areas—simulcast period
(7) Part B of the national television conversion scheme may make provision for a transitional period for a specified remote coverage area, that is to be known as the simulcast period, throughout which a national broadcaster is required to transmit simultaneously the national television broadcasting service concerned in both analog mode and SDTV digital mode in that area.
(7A) The simulcast period for a particular remote coverage area:
(a) is to begin on the date mentioned in subclause (6A); and
(b) is to end at the end of the simulcast period (within the meaning of subclause 6(7)) for the licence area that corresponds to that coverage area.
Multi‑channelled national television broadcasting services
(7B) This clause does not apply to a multi‑channelled national television broadcasting service.
Simulcasting
(8) In determining, for the purposes of paragraph (3)(c) and subclause (7), whether a national broadcaster transmits simultaneously the national television broadcasting service concerned in both analog mode and SDTV digital mode:
(a) in the case of the Special Broadcasting Service Corporation where a relevant determination is in force under subclause (9)—ignore any advertising or sponsorship matter covered by the determination, so long as the Special Broadcasting Service Corporation complies with such conditions (if any) as are specified in the determination; and
(b) if a relevant determination is in force under subclause (10)—ignore any television programs covered by the determination, so long as the national broadcaster complies with such conditions (if any) as are specified in the determination; and
(c) ignore any digital program‑enhancement content (as defined by subclause (14)); and
(d) ignore a particular television program transmitted using multi‑channelling transmission capacity, where:
(i) the program is a scheduled program that provides live coverage of a designated event (as defined by subclause (20)); and
(ii) the other television program broadcast using that multi‑channelling transmission capacity is a regularly scheduled news program; and
(iii) the end of the designated event is delayed for reasons that are not within the control of the national broadcaster or of the person (if any) who supplied the first‑mentioned program to the national broadcaster (either directly or indirectly through one or more interposed persons); and
(iv) the sole purpose of the use of the multi‑channelling transmission capacity is to allow viewers of the SDTV version of the national television broadcasting service to choose between viewing the regularly scheduled news program and viewing so much of the designated event as overlaps the other television program; and
(e) ignore an electronic program guide (as defined by subclause (24)).
(8A) For the purposes of this Act (other than paragraph (3)(c) or subclauses (7), (8) and (11) of this clause or Division 2 of Part 4 of this Schedule) and any other law of the Commonwealth, if a national broadcaster transmits matter that is required to be ignored by paragraph (8)(c), (d) or (e) of this clause, that matter is taken to be part of the national television broadcasting service concerned.
(9) The ABA may, by writing, determine that paragraph (8)(a) applies to specified advertising or sponsorship matter transmitted by the Special Broadcasting Service Corporation during a specified period. The specified advertising or sponsorship matter may consist of all advertising or sponsorship matter transmitted by the Special Broadcasting Service Corporation. The specified period may consist of the simulcast period for the coverage area concerned.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(10) The ABA may, by writing, determine that paragraph (8)(b) applies to specified television programs transmitted by a specified national broadcaster during a specified period.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(11) The ABA must not make a determination under subclause (9) or (10) unless the ABA is satisfied that, if it were assumed that the determination were made, the version of the national television broadcasting service transmitted in SDTV digital mode will be substantially the same as the version of the service transmitted in analog mode.
(12) A determination under subclause (9) or (10) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(13) A reference in this clause to advertising or sponsorship matter is a reference to advertising or sponsorship matter (whether or not of a commercial kind).
Digital program‑enhancement content
(14) For the purposes of this clause, digital program‑enhancement content is content:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;
where:
(g) the content is transmitted using a digital modulation technique; and
(h) the sole purpose of the transmission of the content is to enhance a television program (the primary program); and
(i) the subject matter of the content is closely and directly linked to the subject matter of the primary program; and
(j) the national broadcaster transmits simultaneously the content and the primary program; and
(k) either:
(i) the national broadcaster transmits simultaneously the primary program in both analog mode and SDTV digital mode; or
(ii) the primary program is covered by a determination under subclause (9) or (10).
Note: For example, if the primary program is live coverage of a tennis match, the digital program‑enhancement content could consist of any or all of the following:
(a) the match from different camera angles;
(b) each player’s results in past matches;
(c) video highlights from those past matches;
(d) each player’s ranking and career highlights.
Designated event
(20) For the purposes of this clause, a designated event is:
(a) a sporting event; or
(b) a declared designated event (as defined by subclause (21)).
(21) The ABA may, by writing, determine that a specified event is a declared designated event for the purposes of this clause.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(22) A determination under subclause (21) has effect accordingly.
(23) A determination under subclause (21) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Electronic program guide
(24) For the purposes of this clause, an electronic program guide is matter transmitted using a uniform digital modulation technique, where the matter consists of no more than:
(a) a schedule of the television programs provided by:
(i) the national television broadcasting service transmitting the matter; or
(ii) all of the commercial television broadcasting services and all of the national television broadcasting services; or
(b) a combination of:
(i) a schedule covered by paragraph (a); and
(ii) items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief and in the form of text; or
(c) a combination of:
(i) a schedule covered by paragraph (a); and
(ii) a facility the sole purpose of which is to enable an end‑user to select, and commence viewing, one or more of the programs in the schedule; or
(d) a combination of:
(i) a schedule covered by paragraph (a); and
(ii) items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief and in the form of text; and
(iii) a facility the sole purpose of which is to enable an end‑user to select, and commence viewing, one or more of the programs in the schedule.
20 National broadcasters to give implementation plans to the Minister
(1) As soon as practicable after the formulation of the national television conversion scheme, a national broadcaster must give the Minister one or more implementation plans relating to the conversion, over time, of the transmission of the national television broadcasting service concerned from analog mode to digital mode.
(1A) Subclause (1) does not apply to a multi‑channelled national television broadcasting service.
(2) In preparing an implementation plan, a national broadcaster must have regard to the following matters:
(a) in the case of an implementation plan that relates to a coverage area that is not a remote coverage area—whether the implementation plan is directed towards ensuring the achievement of the following policy objectives:
(i) the objective that each national broadcaster should be required to commence transmitting the national broadcasting service concerned in digital mode in each metropolitan coverage area on 1 January 2001;
(ii) the objective that each national broadcaster should be required to commence transmitting the national television broadcasting service concerned in digital mode to regional coverage areas (other than remote coverage areas) on or after 1 January 2001 so that all regional coverage areas (other than remote coverage areas) have digital transmission of the service by 1 January 2004;
(b) in the case of an implementation plan that relates to a coverage area that is not a remote coverage area—the objectives mentioned in subclause 19(3);
(c) in the case of an implementation plan that relates to a remote coverage area—the special circumstances that apply to the transmission of national television broadcasting services in that area;
(d) such other matters (if any) as the national broadcaster considers relevant.
(3) If an implementation plan is given to the Minister under this clause, the Minister must:
(a) approve the implementation plan; or
(b) refuse to approve the implementation plan.
(4) In deciding whether to approve an implementation plan under this clause, the Minister must have regard to the following matters:
(a) in the case of an implementation plan that relates to a coverage area that is not a remote coverage area—whether the implementation plan is directed towards ensuring the achievement of the following policy objectives:
(i) the objective that each national broadcaster should be required to commence transmitting the national broadcasting service concerned in digital mode in each metropolitan coverage area on 1 January 2001;
(ii) the objective that each national broadcaster should be required to commence transmitting the national television broadcasting service concerned in digital mode to regional coverage areas (other than remote coverage areas) on or after 1 January 2001 so that all regional coverage areas (other than remote coverage areas) have digital transmission of the service by 1 January 2004;
(b) in the case of an implementation plan that relates to a coverage area that is not a remote coverage area—the objectives mentioned in subclause 19(3);
(c) in the case of an implementation plan that relates to a remote coverage area—the special circumstances that apply to the transmission of national television broadcasting services in that area;
(d) such other matters (if any) as the Minister considers relevant.
(5) Before deciding whether to approve an implementation plan under this clause, the Minister may direct the ABA to give the Minister a report about the matter.
(6) If the Minister approves an implementation plan under this clause, the implementation plan comes into force on approval.
(7) If the Minister refuses to approve an implementation plan under this clause, the Minister may, by written notice given to the national broadcaster concerned:
(a) require the national broadcaster to give a fresh implementation plan under subclause (1); and
(b) advise the national broadcaster that, if specified changes were incorporated in the fresh plan, the Minister would be disposed to approve the fresh plan.
The notice must also set out the reasons for the refusal.
(8) The Minister must cause copies of a notice under subclause (7) to be laid before each House of the Parliament within 7 sitting days of that House after the giving of the notice.
(9) A national broadcaster may give the Minister a variation of an approved implementation plan that relates to the national broadcaster. Subclauses (2) to (8) (inclusive) apply to the variation of an implementation plan in a corresponding way to the way in which they apply to an implementation plan.
21 Compliance with implementation plans
If an implementation plan given by a national broadcaster under clause 20 is in force, the national broadcaster must comply with the implementation plan.
22 Scheme may confer administrative powers on the ABA
The national television conversion scheme may make provision with respect to a matter by conferring on the ABA a power to make a decision of an administrative character.
22A Scheme may confer power to make digital channel plans
(1) The national television conversion scheme may provide for the ABA to make one or more plans (digital channel plans) that:
(a) allot channels to national broadcasters; and
(b) set out any technical limitations on the use of a particular channel that the ABA believes should be shown in the plan; and
(c) set out whether the use of a channel depends on any event or circumstances described in the plan.
(2) The national television conversion scheme may provide that a digital channel plan may include other matters.
(3) The national television conversion scheme may provide for the ABA to vary a digital channel plan.
23 Transmitter licences
Grant of additional spectrum for digital transmission
(1) The national television conversion scheme must make provision for requiring the ACA to issue transmitter licences authorising transmissions of national television broadcasting services in digital mode.
Return of spectrum if digital transmission does not begin
(2) Part A of the national television conversion scheme must make provision for requiring a national broadcaster to surrender one or more transmitter licences authorising digital transmission if:
(a) the national broadcaster does not commence digital transmission as mentioned in paragraph 19(3)(a) or (b) of this Schedule; and
(b) the national broadcaster does not satisfy the ABA that there are exceptional circumstances.
Return of spectrum if digital transmission does not continue throughout the simulcast period
(3) Part A of the national television conversion scheme must make provision for requiring a national broadcaster to surrender one or more transmitter licences authorising digital transmission if:
(a) the national broadcaster commences digital transmission as mentioned in paragraph 19(3)(a) or (b) of this Schedule; and
(b) the national broadcaster ceases digital transmission during the simulcast period for the coverage area concerned; and
(c) under the scheme, the ABA gives the national broadcaster a written direction to:
(i) resume digital transmission in that area within the period specified in the direction (being a period that is not longer than one month); and
(ii) continue digital transmission throughout the simulcast period for that area; and
(d) the national broadcaster does not comply with a direction referred to in paragraph (c); and
(e) the national broadcaster does not satisfy the ABA that there are exceptional circumstances.
Return of spectrum at end of simulcast period
(4) If, at the end of the simulcast period for a coverage area, a national broadcaster holds one or more transmitter licences that authorised the transmission of the national television broadcasting service concerned in that area, Part A of the national television conversion scheme must make provision for:
(a) requiring the national broadcaster to surrender the licence or licences, with effect from the end of the simulcast period; and
(b) requiring the ACA to issue, with effect from the end of the simulcast period, one or more transmitter licences that authorise the transmission of the national broadcasting service concerned using the channel or channels mentioned in paragraph 19(3)(ha) of this Schedule.
Return of spectrum if format and HDTV standards contravened
(7) Part A of the national television conversion scheme must make provision for requiring a national broadcaster to surrender the transmitter licence or licences that authorised the transmission of the national television broadcasting service concerned in digital mode in the coverage area concerned if:
(a) the national broadcaster contravenes a standard under subclause 37(1) or 37A(1) or 37F(1) or (3); and
(b) under the scheme, the ABA gives the national broadcaster a written direction to comply with the standard within the period specified in the direction (being a period that is not longer than one month); and
(c) the national broadcaster does not comply with a direction referred to in paragraph (b); and
(d) the national broadcaster does not satisfy the ABA that there are exceptional circumstances.
(8) Subclause (7) does not prevent the national television conversion scheme from making provision for requiring the ACA to issue a transmitter licence to replace a licence that was surrendered on the grounds of a contravention of a standard under subclause 37A(1) or 37F(1) or (3). However, the amount of transmission capacity covered by the replacement licence must be less than the amount of transmission capacity covered by the surrendered licence.
Remote coverage areas
(10) Part B of the national television conversion scheme may make provision for requiring a national broadcaster to surrender one or more transmitter licences authorising analog transmission or authorising digital transmission if the national broadcaster does not comply with:
(a) a specified requirement of that Part of the scheme; or
(b) a standard applicable to the national broadcaster under subclause 37B(1) or 37C(1) or 37H(1) or (2).
(10A) Subclause (10) does not prevent the national television conversion scheme from making provision for requiring the ACA to issue a transmitter licence to replace a licence that was surrendered on the grounds of a contravention of a standard under subclause 37C(1) or 37H(1) or (2). However, the amount of transmission capacity covered by the replacement licence must be less than the amount of transmission capacity covered by the surrendered licence.
(11) Part B of the national television conversion scheme may make provision for requiring the ACA to vary the conditions of a transmitter licence that authorised analog transmission of a national television broadcasting service in a remote coverage area so as to ensure that the licence authorises digital transmission of that service in that area.
24 Amendment of certain plans and guidelines
(1) The national television conversion scheme may amend the frequency allotment plan or a licence area plan.
(2) The national television conversion scheme may amend technical planning guidelines in force under section 33.
(3) Subclauses (1) and (2) do not limit the ABA’s powers under sections 25, 26 and 33.
25 Reviews and reports
The national television conversion scheme may provide for the ABA to conduct reviews, and report to the Minister, on specified matters.
26 Ancillary or incidental provisions
The national television conversion scheme may contain such ancillary or incidental provisions as the ABA considers appropriate.
27 ABA to have regard to datacasting allocation power
(1) In formulating or varying the national television conversion scheme, the ABA must have regard to its power under subsection 34(3) (which deals with datacasting allocation).
(2) Subclause (1) does not limit the matters to which the ABA may have regard.
28 ABA to have regard to special circumstances that apply in remote coverage areas
(1) In formulating or varying Part B of the national television conversion scheme, the ABA must have regard to the special circumstances that apply to the transmission of national television broadcasting services in remote coverage areas.
(2) Subclause (1) does not limit the matters to which the ABA may have regard.
29 Minister may give directions to the ABA
(1) In formulating or varying the national television conversion scheme, the ABA must comply with any written directions given to it by the Minister under this subclause.
(2) A direction under subclause (1) may be of a general or specific nature.
(3) The Minister must arrange for a copy of a direction under subclause (1) to be published in the Gazette within 14 days after the direction is given.
30 Variation of scheme
(1) The national television conversion scheme may be varied, but not revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901.
(2) Subclause (1) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to other instruments under this Act.
31 Scheme to be a disallowable instrument
An instrument under subclause 19(1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
32 Scheme does not take effect until approved by the Minister
The national television conversion scheme, or a variation of the scheme, does not take effect unless and until it is approved, in writing, by the Minister.
33 Processes to be public
In formulating or varying the national television conversion scheme, the ABA must make provision for:
(a) public consultation; and
(b) consultation with national broadcasters; and
(c) consultation with holders of commercial television broadcasting licences; and
(d) consultation with the ACA; and
(e) consultation with owners and operators of broadcasting transmission towers.
34 Compliance with scheme
A national broadcaster must comply with the national television conversion scheme.
35 Simulcasting requirements
(1) If there is a simulcast period for a coverage area, a national broadcaster must not broadcast a television program in SDTV digital mode in that area during the simulcast period for that area unless the program is broadcast simultaneously by the national broadcaster in analog mode in that area.
(2) Subclause 19(8) applies to this clause in a corresponding way to the way in which it applies to paragraph 19(3)(c) of this Schedule and subclause 19(7) of this Schedule.
(3) This clause does not apply to a multi‑channelled national television broadcasting service.
35A Provision of electronic program guide information
(1) Each national broadcaster must provide information to a commercial television broadcasting licensee:
(a) in a timely manner; and
(b) at no cost; and
(c) in a form (and accompanied by any necessary digital systems information) that reasonably enables its inclusion in an electronic program guide;
if required to do so by that licensee for the purpose of compiling information for an electronic program guide.
(2) Each national broadcaster must provide information to the other national broadcaster:
(a) in a timely manner; and
(b) at no cost; and
(c) in a form (and accompanied by any necessary digital systems information) that reasonably enables its inclusion in an electronic program guide;
if required to do so by that other national broadcaster for the purpose of compiling information for an electronic program guide.
(3) For the purposes of the application of subclause (1) to information provided to a commercial television broadcasting licensee, electronic program guide has the same meaning as in subclause 6(24).
(4) For the purposes of the application of subclause (2) to information provided to a national broadcaster, electronic program guide has the same meaning as in subclause 19(24) of Schedule 4.
36 Digital transmitter not to be used to provide a subscription television broadcasting service etc.
(1) If a national broadcaster holds a transmitter licence that authorises the operation of a transmitter for transmitting the national broadcasting service concerned in digital mode, the national broadcaster must not operate, or permit the operation of, that transmitter to transmit in digital mode:
(a) a commercial broadcasting service that provides radio programs; or
(b) a subscription radio broadcasting service; or
(c) a subscription television broadcasting service; or
(d) a subscription radio narrowcasting service; or
(e) a subscription television narrowcasting service; or
(f) an open narrowcasting radio service; or
(g) an open narrowcasting television service.
Part 3A—Accessibility of domestic reception equipment
36B Accessibility of domestic reception equipment
(1) The regulations may provide that a designated person must not:
(a) provide domestic reception equipment; or
(b) enter into an agreement, arrangement or understanding in relation to the provision of domestic reception equipment;
unless the equipment is accessible by:
(c) each commercial television broadcasting service; and
(d) each national television broadcasting service; and
(e) each datacasting service provided under, and in accordance with the conditions of, a datacasting licence.
(2) In this clause:
designated person means:
(a) the holder of a commercial television broadcasting licence; or
(b) a national broadcaster; or
(c) the holder of a datacasting licence; or
(d) the holder of a datacasting transmitter licence.
reception equipment means equipment that is capable of receiving either or both of the following:
(a) a television broadcasting service transmitted in digital mode;
(b) a datacasting service provided under, and in accordance with the conditions of, a datacasting licence.
36C Compliance by national broadcasters
A national broadcaster must comply with any regulations made for the purposes of clause 36B.
Note 1: For compliance by holders of commercial television broadcasting licences, see clause 7 of Schedule 2.
Note 2: For compliance by holders of datacasting licences, see clause 24 of Schedule 6.
Note 3: For compliance by holders of datacasting transmitter licences, see section 109A of the Radiocommunications Act 1992.
Part 4—Standards
Division 1—Digital television format standards
37 Non‑remote areas—SDTV format standards
(1) The regulations may determine standards that are to be observed by:
(a) commercial television broadcasting licensees; and
(b) national broadcasters;
in relation to the format in which television programs are to be transmitted in SDTV digital mode.
(2) Subclause (1) applies in relation to the transmission of a commercial television broadcasting service in a licence area that is not a remote licence area, where that service is transmitted in digital mode in that area.
(3) Subclause (1) applies in relation to the transmission of a national television broadcasting service in a coverage area that is not a remote coverage area, where that service is transmitted in digital mode in that area.
37A Non‑remote areas—HDTV format standards
(1) The regulations may determine standards that are to be observed by:
(a) commercial television broadcasting licensees; and
(b) national broadcasters;
in relation to the format in which television programs are to be transmitted in HDTV digital mode.
(2) Subclause (1) applies in relation to the transmission of a commercial television broadcasting service in a licence area that is not a remote licence area, where:
(a) that service is transmitted in digital mode in that area; and
(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(8).
(3) Subclause (1) applies in relation to the transmission of a national television broadcasting service in a coverage area that is not a remote coverage area, where:
(a) that service is transmitted in digital mode in that area; and
(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 23(8).
37B Remote areas—SDTV format standards
(1) The regulations may determine standards that are to be observed by:
(a) commercial television broadcasting licensees; and
(b) national broadcasters;
in relation to the format in which television programs are to be transmitted in SDTV digital mode.
(2) Subclause (1) applies in relation to the transmission of a commercial television broadcasting service in a remote licence area, where that service is transmitted in digital mode in that area.
(3) Subclause (1) applies in relation to the transmission of a national television broadcasting service in a remote coverage area, where that service is transmitted in digital mode in that area.
37C Remote areas—HDTV format standards
(1) The regulations may determine standards that are to be observed by:
(a) commercial television broadcasting licensees; and
(b) national broadcasters;
in relation to the format in which television programs are to be transmitted in HDTV digital mode.
(2) Subclause (1) applies in relation to the transmission of a commercial television broadcasting service in a remote licence area, where:
(a) that service is transmitted in digital mode in that area; and
(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(10A).
(3) Subclause (1) applies in relation to the transmission of a national television broadcasting service in a remote coverage area, where:
(a) that service is transmitted in digital mode in that area; and
(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 23(10A).
37D Compliance by national broadcasters
A national broadcaster must comply with a standard under this Division that is applicable to the broadcaster.
Note: For compliance by licensees, see clause 7 of Schedule 2.
Division 2—HDTV quota standards
37E Non‑remote areas—HDTV quotas for commercial television broadcasting licensees
(1) The regulations must determine standards that require each commercial television broadcasting licensee:
(a) in addition to transmitting a version of the commercial television broadcasting service concerned in SDTV digital mode in the licence area concerned, to transmit another version (the HDTV version) of the service in digital mode in that area; and
(b) to meet specified quotas in relation to the extent to which high‑definition television programs, or specified kinds of high‑definition television programs, are transmitted in HDTV digital mode on the HDTV version of that service in that area; and
(c) if the licence was not allocated under section 38B—to ensure that a particular television program transmitted on the HDTV version of that service in that area during the simulcast period for that area is the same as:
(i) a program (the analog program) that is transmitted simultaneously by the licensee on that service in analog mode in that area and that is not covered by a determination under subclause 6(9) or (10); or
(ii) a program (the SDTV program) that is transmitted simultaneously by the licensee on that service in SDTV digital mode in that area and that is covered by a determination under subclause 6(9) or (10); and
(d) if the licence was allocated under section 38B—to ensure that a particular television program transmitted on the HDTV version of that service in that area during the simulcast period for that area is the same as a program (the SDTV program) that is transmitted simultaneously by the licensee on that service in SDTV digital mode in that area.
(2) Standards made for the purposes of subclause (1) must be directed towards ensuring the achievement of the following policy objectives:
(a) the objective that the transmission mentioned in paragraph (1)(a) is to commence:
(i) as soon as practicable after the licensee begins to transmit the commercial television broadcasting service concerned in SDTV digital mode in that area; and
(ii) in any event, within the 2‑year period beginning when the licensee is required to commence transmitting the commercial television broadcasting service concerned in SDTV digital mode in that area;
(b) the objective that, after the end of that 2‑year period, each holder of a commercial television broadcasting licence for a licence area is required to transmit at least 20 hours per week of high‑definition television programs in HDTV digital mode in that area on the HDTV version of the commercial television broadcasting service concerned.
Prime viewing hours quotas
(3) The regulations may determine standards that require commercial television broadcasting licensees to meet specified quotas in relation to the extent to which high‑definition television programs, or specified kinds of high‑definition television programs, are transmitted in HDTV digital mode in prime viewing hours on the HDTV version of the commercial television broadcasting service concerned.
Application
(4) Subclauses (1), (2) and (3) apply in relation to the transmission of a commercial television broadcasting service in a licence area that is not a remote licence area, where:
(a) that service is transmitted in digital mode in that area; and
(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(8); and
(c) that service is not the subject of an election under subclause 6(5A).
Note 1: For high‑definition television program, see clause 37L.
Note 2: For prime viewing hours, see clause 37M.
37EA Further HDTV transmission rules for commercial television broadcasting licensees in non‑remote areas
(1) In determining, for the purposes of standards made under subclause 37E(1), whether a commercial television broadcasting licensee has ensured that the HDTV simulcast requirement is met:
(a) if a relevant determination is in force under subclause (2)—ignore HDTV demonstration programs, so long as the licensee complies with such conditions (if any) as are specified in the determination; and
(b) if a relevant determination is in force under subclause (4)—ignore any advertising or sponsorship matter covered by the determination.
ABA determinations
(2) The ABA may, by writing, determine that paragraph (1)(a) applies to HDTV demonstration programs transmitted by a specified commercial television broadcasting licensee during a specified period.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(3) The period specified in a determination under subclause (2) must not be more than 12 months from the commencement of the determination.
(4) The ABA may, by writing, determine that paragraph (1)(b) applies to specified advertising or sponsorship matter transmitted by a specified commercial television broadcasting licensee during a specified period.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(5) The period specified in a determination under subclause (4) must not be more than 2 years from the commencement of the simulcast period for the licence area concerned.
20 hour HDTV quota
(7) In determining, after the end of the 2‑year period referred to in paragraph 37E(2)(b) of this Schedule, whether a commercial television broadcasting licensee has met the HDTV 20 hour requirement for a week, ignore any HDTV demonstration programs transmitted by the licensee during the week.
Disallowable instrument
(8) A determination under subclause (2) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Interpretation
(9) A reference in this clause to advertising or sponsorship matter is a reference to advertising or sponsorship matter (whether or not of a commercial kind).
(10) In this clause:
HDTV 20 hour requirement means the requirement that a commercial television broadcasting licensee transmit at least 20 hours a week of high‑definition television programs in HDTV digital mode in the licence area concerned on the HDTV version of the commercial television broadcasting service concerned.
HDTV demonstration program means a television program that is:
(a) not longer than 60 minutes; and
(b) transmitted in HDTV digital mode on the HDTV version of a commercial television broadcasting service; and
(c) produced for the sole purpose of allowing the benefits of transmission in HDTV digital mode to be demonstrated to potential purchasers of equipment capable of receiving television programs in HDTV digital mode.
HDTV simulcast requirement means the requirement referred to in paragraph 37E(1)(c) or (d) of this Schedule.
37F Non‑remote areas—HDTV quotas for national broadcasters
(1) The regulations must determine standards that require each national broadcaster:
(a) in addition to transmitting a version of the national television broadcasting service concerned in SDTV digital mode in the coverage area concerned, to transmit another version (the HDTV version) of the service in digital mode in that area; and
(b) to meet specified quotas in relation to the extent to which high‑definition television programs, or specified kinds of high‑definition television programs, are transmitted in HDTV digital mode on the HDTV version of that service in that area; and
(c) to ensure that a particular television program transmitted on the HDTV version of that service in that area during the simulcast period for that area is the same as:
(i) a program (the analog program) that is transmitted simultaneously by the broadcaster on that service in analog mode in that area and that is not covered by a determination under subclause 19(9) or (10); or
(ii) a program (the SDTV program) that is transmitted simultaneously by the broadcaster on that service in SDTV digital mode in that area and that is covered by a determination under subclause 19(9) or (10).
(2) Standards made for the purposes of subclause (1) must be directed towards ensuring the achievement of the following policy objectives:
(a) the objective that the transmission mentioned in paragraph (1)(a) is to commence:
(i) as soon as practicable after the broadcaster begins to transmit the national television broadcasting service concerned in SDTV digital mode in that area; and
(ii) in any event, within the 2‑year period beginning when the broadcaster is required to commence transmitting the national television broadcasting service concerned in SDTV digital mode in that area;
(b) the objective that, after the end of that 2‑year period each national broadcaster is required to transmit at least 20 hours per week of high‑definition television programs in HDTV digital mode in a coverage area on the HDTV version of the national television broadcasting service concerned.
Prime viewing hours quotas
(3) The regulations may determine standards that require national broadcasters to meet specified quotas in relation to the extent to which high‑definition television programs, or specified kinds of high‑definition television programs, are transmitted in HDTV digital mode in prime viewing hours on the HDTV version of the national television broadcasting service concerned.
Application
(4) Subclauses (1), (2) and (3) apply in relation to the transmission of a national television broadcasting service in a coverage area that is not a remote coverage area, where:
(a) that service is transmitted in digital mode in that area; and
(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 23(8); and
(c) that service is not a multi‑channelled national television broadcasting service.
Note 1: For high‑definition television program, see clause 37L.
Note 2: For prime viewing hours, see clause 37M.
37FA Further HDTV transmission rules for national broadcasters in non‑remote areas
(1) In determining, for the purposes of standards made under subclause 37F(1), whether a national broadcaster has ensured that the HDTV simulcast requirement is met:
(a) if a relevant determination is in force under subclause (2)—ignore HDTV demonstration programs, so long as the national broadcaster complies with such conditions (if any) as are specified in the determination; and
(b) in the case of the Special Broadcasting Service Corporation where a relevant determination is in force under subclause (4)—ignore any advertising or sponsorship matter covered by the determination.
ABA determinations
(2) The ABA may, by writing, determine that paragraph (1)(a) applies to HDTV demonstration programs transmitted by a specified national broadcaster during a specified period.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(3) The period specified in a determination under subclause (2) must not be more than 12 months from the commencement of the determination.
(4) The ABA may, by writing, determine that paragraph (1)(b) applies to specified advertising or sponsorship matter transmitted by the Special Broadcasting Service Corporation during a specified period.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(5) The period specified in a determination under subclause (4) must not be more than 2 years from the commencement of the simulcast period for the coverage area concerned.
20 hour HDTV quota
(7) In determining, after the end of the 2‑year period referred to in paragraph 37F(2)(b) of this Schedule, whether a national broadcaster has met the HDTV 20 hour requirement for a week, ignore any HDTV demonstration programs transmitted by the national broadcaster during the week.
Disallowable instrument
(8) A determination under subclause (2) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Interpretation
(9) A reference in this clause to advertising or sponsorship matter is a reference to advertising or sponsorship matter (whether or not of a commercial kind).
(10) In this clause:
HDTV 20 hour requirement means the requirement that a national broadcaster transmit at least 20 hours a week of high‑definition television programs in HDTV digital mode in the coverage area concerned on the HDTV version of the national television broadcasting service concerned.
HDTV demonstration program means a television program that is:
(a) not longer than 60 minutes; and
(b) transmitted in HDTV digital mode on the HDTV version of a national television broadcasting service; and
(c) produced for the sole purpose of allowing the benefits of transmission in HDTV digital mode to be demonstrated to potential purchasers of equipment capable of receiving television programs in HDTV digital mode.
HDTV simulcast requirement means the requirement referred to in paragraph 37F(1)(c) of this Schedule.
37G Remote areas—HDTV quotas for commercial television broadcasting licensees
(1) The regulations may determine standards that require each commercial television broadcasting licensee:
(a) in addition to transmitting a version of the commercial television broadcasting service concerned in SDTV digital mode in the licence area concerned, to transmit another version (the HDTV version) of the service in digital mode in that area; and
(b) to meet specified quotas in relation to the extent to which high‑definition television programs, or specified kinds of high‑definition television programs, are transmitted in HDTV digital mode on the HDTV version of that service in that area; and
(c) if the licence was not allocated under section 38B—to ensure that a particular television program transmitted on the HDTV version of that service in that area during the simulcast period for that area is the same as:
(i) a program (the analog program) that is transmitted simultaneously by the licensee on that service in analog mode in that area and that is not covered by a determination under subclause 6(9) or (10); or
(ii) a program (the SDTV program) that is transmitted simultaneously by the licensee on that service in SDTV digital mode in that area and that is covered by a determination under subclause 6(9) or (10); and
(d) if the licence was allocated under section 38B—to ensure that a particular television program transmitted on the HDTV version of that service in that area during the simulcast period for that area is the same as a program (the SDTV program) that is transmitted simultaneously by the licensee on that service in SDTV digital mode in that area.
(1A) If the regulations determine standards that require each commercial television broadcasting licensee to ensure the requirement in paragraph (1)(c) or (d) is met, the regulations may also make provision for and in relation to exceptions to that requirement.
(1B) In making provision for and in relation to exceptions to that requirement, the regulations may empower the ABA to make written determinations and to impose conditions on commercial television broadcasting licensees in those determinations.
(1C) Subclause (1B) does not limit subclause (1A).
Prime viewing hours quotas
(2) The regulations may determine standards that require commercial television broadcasting licensees to meet specified quotas in relation to the extent to which high‑definition television programs, or specified kinds of high‑definition television programs, are transmitted in HDTV digital mode in prime viewing hours on the HDTV version of the commercial television broadcasting service concerned.
Application
(3) Subclauses (1) and (2) apply in relation to the transmission of a commercial television broadcasting service in a remote licence area, where:
(a) that service is transmitted in digital mode in that area; and
(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(10A).
Note 1: For high‑definition television program, see clause 37L.
Note 2: For prime viewing hours, see clause 37M.
37H Remote areas—HDTV quotas for national broadcasters
(1) The regulations may determine standards that require each national broadcaster:
(a) in addition to transmitting a version of the national television broadcasting service concerned in SDTV digital mode in the coverage area concerned, to transmit another version (the HDTV version) of the service in digital mode in that area; and
(b) to meet specified quotas in relation to the extent to which high‑definition television programs, or specified kinds of high‑definition television programs, are transmitted in HDTV digital mode on the HDTV version of that service in that area; and
(c) to ensure that a particular television program transmitted on the HDTV version of that service in that area during the simulcast period for that area is the same as:
(i) a program (the analog program) that is transmitted simultaneously by the broadcaster on that service in analog mode in that area and that is not covered by a determination under subclause 19(9) or (10); or
(ii) a program (the SDTV program) that is transmitted simultaneously by the broadcaster on that service in SDTV digital mode in that area and that is covered by a determination under subclause 19(9) or (10).
(1A) If the regulations determine standards that require each national broadcaster to ensure the requirement in paragraph (1)(c) is met, the regulations may also make provision for and in relation to exceptions to that requirement.
(1B) In making provision for and in relation to exceptions to that requirement, the regulations may empower the ABA to make written determinations and to impose conditions on national broadcasters in those determinations.
(1C) Subclause (1B) does not limit subclause (1A).
Prime viewing hours quotas
(2) The regulations may determine standards that require national broadcasters to meet specified quotas in relation to the extent to which high‑definition television programs, or specified kinds of high‑definition television programs, are transmitted in HDTV digital mode in prime viewing hours on the HDTV version of the national television broadcasting service concerned.
(3) Subclauses (1) and (2) apply in relation to the transmission of a national television broadcasting service in a remote coverage area, where:
(a) that service is transmitted in digital mode in that area; and
(b) that service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 23(10A); and
(c) that service is not a multi‑channelled national television broadcasting service.
Note 1: For high‑definition television program, see clause 37L.
Note 2: For prime viewing hours, see clause 37M.
37J HDTV version
To avoid doubt, a HDTV version of a commercial television broadcasting service or of a national television broadcasting service need not transmit all of the television programs that are broadcast on the version of the service that is transmitted in SDTV digital mode.
Note: For example, a HDTV version of a particular service could consist of programs transmitted in HDTV digital mode. In such a case, receivers would pick up the remaining programs from the version of the service that is transmitted in SDTV digital mode.
37K Compliance by national broadcasters
A national broadcaster must comply with a standard under this Division that is applicable to the broadcaster.
Note: For compliance by licensees, see clause 7 of Schedule 2.
37L High‑definition television programs
(1) For the purposes of the application of this Division to a commercial television broadcasting licensee, a high‑definition television program is:
(a) a television program that was originally produced in a high‑definition digital video format; or
(b) a television program that:
(i) was originally produced in a non‑video format (for example, 16 mm or 35 mm film) that was of equivalent picture quality to a high‑definition digital video format; and
(ii) has been converted to a high‑definition digital video format;
where the conversion has not resulted in a significant reduction in picture quality.
(2) For the purposes of the application of this Division to a national broadcaster, a high‑definition television program is:
(a) a television program that was originally produced in a high‑definition digital video format; or
(b) a television program that:
(i) was originally produced in a non‑video format (for example, 16 mm or 35 mm film) that was of equivalent picture quality to a high‑definition digital video format; and
(ii) has been converted to a high‑definition digital video format;
where the conversion has not resulted in a significant reduction in picture quality; or
(c) a television program that:
(i) was originally produced in a standard definition digital video format; and
(ii) has been converted to a high‑definition digital video format; or
(d) a television program that:
(i) was originally produced in an analog video format; and
(ii) has been converted to a standard definition digital video format;
where the converted program was subsequently converted to a high‑definition digital video format.
37M Prime viewing hours
For the purposes of this Division, prime viewing hours are the hours:
(a) beginning at 6 pm each day or, if another time is prescribed, beginning at that prescribed time each day; and
(b) ending at 10.30 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.
Division 3—Captioning standards
38 Captioning standards
(1) The regulations must determine standards that are to be observed by:
(a) holders of commercial television broadcasting licences; and
(b) national broadcasters;
in relation to the captioning of television programs for the deaf and hearing impaired.
(2) Standards under subclause (1) must require licensees and national broadcasters to meet specified goals or targets in relation to the extent to which television programs, or specified kinds of television programs, are captioned for the deaf and hearing impaired.
(3) Subclause (2) does not limit subclause (1).
(4) Standards under subclause (1) must be directed towards ensuring the achievement of the following objectives:
(a) the objective that, as far as is practicable:
(i) holders of commercial television broadcasting licences; and
(ii) national broadcasters;
should provide a captioning service for television programs transmitted during prime viewing hours;
(b) the objective that, as far as is practicable:
(i) holders of commercial television broadcasting licences; and
(ii) national broadcasters;
should provide a captioning service for television news programs, and television current affairs programs, transmitted outside prime viewing hours.
(4A) Subclause (4) has effect subject to subclause (4B).
(4B) Standards under subclause (1) must not require the provision of a captioning service for:
(a) a television program, or a part of a television program, that is wholly in a language other than English; or
(b) a television program, or a part of a television program, the audio component of which consists only of music that has no human vocal content that is recognisable as being in the English language; or
(c) so much of the audio component of a television program as consists of incidental or background music.
(4C) For the purposes of paragraphs (4B)(a) and (b), disregard minor and infrequent uses of the English language.
(5) For the purposes of subclause (4), prime viewing hours are the hours:
(a) beginning at 6 pm each day or, if another time is prescribed, beginning at that prescribed time each day; and
(b) ending at 10.30 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.
(6) Standards under subclause (1) do not apply to a particular licensee or national broadcaster before the first occasion on or after 1 January 2001 on which the licensee or broadcaster broadcasts television programs in digital mode.
(7) A national broadcaster must comply with a standard under subclause (1).
Note: For compliance by licensees, see clause 7 of Schedule 2.
(8) In this clause:
program does not include advertising or sponsorship matter (whether or not of a commercial kind).
Division 4—Technical standards
39 Technical standards for digital transmission of television broadcasting services
(1) The regulations may determine technical standards that:
(a) relate to the transmission of commercial television broadcasting services, and national broadcasting services, in digital mode; and
(b) are to be followed by the ABA in formulating or varying the commercial television conversion scheme or the national television conversion scheme.
(2) Standards under subclause (1), to the extent that they deal with conditional access systems, must be directed towards ensuring the achievement of the policy objective that, as far as is practicable, those systems should be open to all providers of eligible datacasting services.
(2AA) Standards under subclause (1), to the extent that they deal with application program interfaces, must be directed towards ensuring the achievement of the policy objective that, as far as is practicable, those interfaces should be open to all providers of eligible datacasting services.
(2A) For the purposes of this clause, an eligible datacasting service is:
(a) a datacasting service provided under, and in accordance with the conditions of, a datacasting licence; or
(b) a television broadcasting service transmitted in digital mode using the broadcasting services bands.
(3) The commercial television conversion scheme must be consistent with any standards determined under subclause (1).
(4) The national television conversion scheme must be consistent with any standards determined under subclause (1).
(5) In this clause:
application program interface has the meaning generally accepted within the broadcasting industry.
conditional access system means a conditional access system that:
(a) relates to the provision of one or more eligible datacasting services; and
(b) allows a provider of an eligible datacasting service to determine whether an end‑user is able to receive a particular eligible datacasting service.
Division 5—Miscellaneous
41 Standards may incorporate other instruments
Section 589 of the Telecommunications Act 1997 applies to regulations made for the purposes of this Part in a corresponding way to the way in which it applies to an instrument under that Act.
Part 5—Transmitter access regime
42 Simplified outline
The following is a simplified outline of this Part:
• The owner or operator of a broadcasting transmission tower or a designated associated facility must provide:
(a) the holder of a commercial television broadcasting licence; or
(b) a national broadcaster;
with access to the tower or facility.
• The owner or operator of a broadcasting transmission tower or a designated associated facility must provide a datacaster with access to the tower or facility.
• The owner or operator of a broadcasting transmission tower or a designated associated facility must provide:
(a) the holder of a commercial television broadcasting licence; or
(b) a national broadcaster;
with access to the site of the tower.
• The owner or operator of a broadcasting transmission tower or a designated associated facility must provide a datacaster with access to the site of the tower.
43 Definitions
In this Part:
ACCC means the Australian Competition and Consumer Commission.
business day means a day that is not a Saturday, a Sunday or a public holiday in the place concerned.
datacaster means a person who holds a datacasting transmitter licence.
datacasting transmitter licence does not include an authorisation under section 114 of the Radiocommunications Act 1992.
designated associated facility has the meaning given by clause 43A.
facility includes apparatus, equipment, a structure, a line or an electricity cable or wire.
site means:
(a) land; or
(b) a building on land; or
(c) a structure on land.
43A Designated associated facilities
For the purposes of this Part, a designated associated facility means any of the following facilities:
(a) an antenna;
(b) a combiner;
(c) a feeder system;
(d) a facility of a kind specified in the regulations;
where:
(e) the facility is, or is to be, associated with a transmitter; and
(f) the facility is used, or capable of being used, in connection with:
(i) the transmission of a television broadcasting service in digital mode; or
(ii) the provision of datacasting services in digital mode.
44 Extended meaning of access
(1) For the purposes of this Part, giving access to a tower includes replacing the tower with another tower located on the same site and giving access to the replacement tower.
(2) For the purposes of this Part, giving access to a site on which is situated a tower includes replacing the tower with another tower located on the site.
(3) For the purposes of this Part, giving access to a designated associated facility includes:
(a) replacing the facility with another facility located on the same site and giving access to the replacement facility; or
(b) giving access to a service provided by means of the designated associated facility.
45 Access to broadcasting transmission towers
Television broadcasting services in digital mode
(1) The owner or operator of a broadcasting transmission tower must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also the access seeker), give the access seeker access to the tower.
(2) The owner or operator of the broadcasting transmission tower is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Datacasting services in digital mode
(3) The owner or operator of a broadcasting transmission tower must, if requested to do so by a datacaster (the access seeker), give the access seeker access to the tower.
(4) The owner or operator of the broadcasting transmission tower is not required to comply with subclause (3) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, in connection with the provision of datacasting services in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(5) The owner or operator of a broadcasting transmission tower is not required to comply with subclause (1) or (3) if there is in force a written certificate issued by the ABA stating that, in the ABA’s opinion, compliance with subclause (1) or (3), as the case may be, in relation to that tower is not technically feasible.
(6) In determining whether compliance with subclause (1) or (3) in relation to a tower is technically feasible, the ABA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the tower; and
(ii) making alterations to the tower; and
(d) such other matters (if any) as the ABA considers relevant.
Issue of certificate
(7) If the ABA receives a request to make a decision about the issue of a certificate under subclause (5), the ABA must use its best endeavours to make that decision within 10 business days after the request was made.
45A Access to designated associated facilities
(1) This clause applies to a designated associated facility if the facility is situated on, at, in or under:
(a) a broadcasting transmission tower; or
(b) the site on which a broadcasting transmission tower is situated.
Television broadcasting services in digital mode
(2) The owner or operator of the designated associated facility must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also called the access seeker), give the access seeker access to the facility.
(3) The owner or operator of the designated associated facility is not required to comply with subclause (2) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to use the facility, or a service provided by means of the facility, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Datacasting services in digital mode
(4) The owner or operator of the designated associated facility must, if requested to do so by a datacaster (the access seeker), give the access seeker access to the facility.
(5) The owner or operator of the designated associated facility is not required to comply with subclause (4) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to use the facility, or a service provided by means of the facility, wholly or principally in connection with the provision of datacasting services in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(6) The owner or operator of a designated associated facility is not required to comply with subclause (2) or (4) if there is in force a written certificate issued by the ABA stating that, in the ABA’s opinion, compliance with subclause (2) or (4), as the case may be, in relation to that facility is not technically feasible.
(7) In determining whether compliance with subclause (2) or (4) in relation to a facility is technically feasible, the ABA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the site; and
(ii) making alterations to a facility situated on the site; and
(d) such other matters (if any) as the ABA considers relevant.
Issue of certificate
(8) If the ABA receives a request to make a decision about the issue of a certificate under subclause (6), the ABA must use its best endeavours to make that decision within 10 business days after the request was made.
Exemptions
(9) The regulations may provide for exemptions from subclauses (2) and (4).
(10) Regulations made for the purposes of subclause (9) may make provision with respect to a matter by conferring on the ACCC a power to make a decision of an administrative character.
46 Access to sites of broadcasting transmission towers
Television broadcasting services in digital mode
(1) The owner or operator of a broadcasting transmission tower must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also the access seeker), give the access seeker access to a site if:
(a) the tower is situated on the site; and
(b) either:
(i) the site is owned, occupied or controlled by the owner or operator of the tower; or
(ii) the owner or operator of the tower has a right (either conditional or unconditional) to use the site.
(2) The owner or operator of the broadcasting transmission tower is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Datacasting services in digital mode
(3) The owner or operator of a broadcasting transmission tower must, if requested to do so by a datacaster (the access seeker), give the access seeker access to a site if the tower is situated on the site.
(4) The owner or operator of the broadcasting transmission tower is not required to comply with subclause (3) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, in connection with the provision of datacasting services in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(5) The owner or operator of a broadcasting transmission tower is not required to comply with subclause (1) or (3) if there is in force a written certificate issued by the ABA stating that, in the ABA’s opinion, compliance with subclause (1) or (3), as the case may be, in relation to that tower is not technically feasible.
(6) In determining whether compliance with subclause (1) or (3) in relation to a site is technically feasible, the ABA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the site; and
(ii) making alterations to a facility situated on the site; and
(d) such other matters (if any) as the ABA considers relevant.
Issue of certificate
(7) If the ABA receives a request to make a decision about the issue of a certificate under subclause (5), the ABA must use its best endeavours to make that decision within 10 business days after the request was made.
47 Terms and conditions of access
Access to towers
(1) The owner or operator of a broadcasting transmission tower must comply with subclause 45(1) or (3) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that subclause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
Access to designated associated facilities
(1A) The owner or operator of a designated associated facility must comply with subclause 45A(2) or (4) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that subclause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
Access to sites
(2) The owner or operator of a broadcasting transmission tower must comply with subclause 46(1) or (3) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that subclause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
Conduct of arbitration
(3) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.
(4) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chair of the ACCC.
(5) Subclause (4) does not, by implication, limit subclause (3).
48 Code relating to access
(1) The ACCC may, by written instrument, make a Code setting out conditions that are to be complied with in relation to the provision of access under this Part.
(2) Before making an instrument under subclause (1), the ACCC must consult:
(a) commercial television broadcasting licensees; and
(b) national broadcasters; and
(c) owners and operators of broadcasting transmission towers.
(3) An access seeker must comply with the Code.
(4) The owner or operator of a broadcasting transmission tower must comply with the Code, to the extent to which the Code relates to the provision of access under clause 45 or 46.
(4A) The owner or operator of a designated associated facility must comply with the Code, to the extent to which the Code relates to the provision of access under clause 45A.
(5) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
49 Arbitration—acquisition of property
(1) This clause applies to a provision of this Part that authorises the conduct of an arbitration (whether by the ACCC or another person).
(2) The provision has no effect to the extent (if any) to which it purports to authorise the acquisition of property if that acquisition:
(a) is otherwise than on just terms; and
(b) would be invalid because of paragraph 51(xxxi) of the Constitution.
(3) In this clause:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
50 Relationship between this Part and the National Transmission Network Sale Act 1998
Part 3 of the National Transmission Network Sale Act 1998 does not apply in relation to an access seeker seeking access to a broadcasting transmission tower or a site to the extent to which this Part applies in relation to the access seeker seeking access to that tower or site.
Part 6—Collection of datacasting charge
51 Collection of datacasting charge
Definitions
(1) In this clause:
charge means charge imposed by the Datacasting Charge (Imposition) Act 1998.
late payment penalty means an amount that is payable by way of penalty in accordance with a determination under subclause (3).
When charge due and payable
(2) Charge is due and payable at the time ascertained in accordance with a written determination made by the ABA.
Late payment penalty
(3) The ABA may, by written instrument, determine that, if any charge payable by a person remains unpaid after the time when it became due for payment, the person is liable to pay to the Commonwealth, by way of penalty, an amount calculated at the rate of:
(a) 20% per annum; or
(b) if the determination specifies a lower percentage—that lower percentage per annum;
on the amount unpaid, computed from that time.
Determination has effect
(4) A determination under subclause (3) has effect accordingly.
Remission of penalty
(5) A determination under subclause (3) may authorise the ABA to make decisions about the remission of the whole or a part of an amount of late payment penalty.
Payment of charge and late payment penalty
(6) Charge and late payment penalty are payable to the ABA on behalf of the Commonwealth.
Recovery of charge and penalty
(7) Charge and late payment penalty may be recovered by the ABA, on behalf of the Commonwealth, as debts due to the Commonwealth.
Payment into Consolidated Revenue Fund
(8) Amounts received by way of charge or late payment penalty must be paid into the Consolidated Revenue Fund.
Disallowable instrument
(9) A determination under subclause (2) or (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
52 Cancellation of certain exemptions from datacasting charge
(1) This clause cancels the effect of a provision of another Act that would have the effect of exempting a person from liability to pay charge imposed by the Datacasting Charge (Imposition) Act 1998.
(2) The cancellation does not apply if the provision of the other Act is enacted after the commencement of this clause and refers specifically to charge imposed by the Datacasting Charge (Imposition) Act 1998.
53 ACA to report to the Minister on principles for determining the amount of datacasting charge
(1) Before the ACA makes its first determination under section 7 of the Datacasting Charge (Imposition) Act 1998, the ACA must prepare, and give to the Minister, a written report about proposals that are to be embodied in that determination.
(2) The report must contain a statement setting out the extent to which the ACA had regard to competitive neutrality principles in formulating those proposals.
(2A) The report must be directed towards ensuring the achievement of the policy objective that only datacasting services that:
(a) are authorised by datacasting licences; and
(b) are not designated teletext services;
are to be taken into account in calculating the amount of charge.
(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 receiving the report.
Part 7—Injunctions
54 Injunctions
Restraining injunctions
(1) If:
(a) the holder of a commercial television broadcasting licence has, in accordance with the commercial television conversion scheme, given an implementation plan to the ABA; and
(b) the ABA has approved the implementation plan; and
(c) the holder has engaged, is engaging or is proposing to engage in any conduct in contravention of the implementation plan;
the Federal Court may, on the application of the ABA, grant an injunction:
(d) restraining the holder from engaging in the conduct; and
(e) if, in the court’s opinion, it is desirable to do so—requiring the holder to do something.
(2) If a person has engaged, is engaging or is proposing to engage in any conduct in contravention of Part 5 of this Schedule, the Federal Court may, on the application of the ABA or of the access seeker referred to in that Part, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.
Performance injunctions
(3) If:
(a) the holder of a commercial television broadcasting licence has, in accordance with the commercial television conversion scheme, given an implementation plan to the ABA; and
(b) the ABA has approved the implementation plan; and
(c) the holder has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and
(d) the refusal or failure was, is or would be a contravention of the implementation plan;
the Federal Court may, on the application of the ABA, grant an injunction requiring the holder to do that act or thing.
(4) If:
(a) a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is or would be a contravention of Part 5 of this Schedule;
the Federal Court may, on the application of the ABA or of the access seeker referred to in that Part, grant an injunction requiring the person to do that act or thing.
55 Interim injunctions
Grant of interim injunction
(1) If an application is made to the court for an injunction under clause 54, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that clause.
No undertakings as to damages
(2) The court is not to require an applicant for an injunction under clause 54, as a condition of granting an interim injunction, to give any undertakings as to damages.
56 Discharge etc. of injunctions
The court may discharge or vary an injunction granted under this Part.
57 Certain limits on granting injunctions not to apply
Restraining injunctions
(1) The power of the court under this Part to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:
(a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.
Performance injunctions
(2) The power of the court under this Part to grant an injunction requiring a person to do an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.
58 Other powers of the court unaffected
The powers conferred on the court under this Part are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
Part 8—Reviews
59 Reviews before 1 January 2000
(1) Before 1 January 2000, the Minister must cause to be conducted a review of the following matters:
(b) whether any amendments of laws of the Commonwealth should be made in order to deal with convergence between broadcasting services and other services;
(c) whether any amendments of laws of the Commonwealth should be made to deal with the re‑transmission, on subscription television broadcasting services, of commercial television broadcasting services transmitted in digital mode;
(d) whether any amendments of laws of the Commonwealth should be made in order to ensure that underserved regional licence areas are provided with up to the same number of commercial television broadcasting services as are provided in metropolitan licence areas;
(da) whether any amendments of laws of the Commonwealth should be made in order to allow a commercial television broadcasting licensee to broadcast a television program in digital mode during the simulcast period for a licence area, where the program is incidental and directly linked to a program that is broadcast simultaneously by the licensee in both analog mode and digital mode in that area;
(db) whether any amendments of laws of the Commonwealth should be made in order to allow a national broadcaster to broadcast a television program in digital mode during the simulcast period for a coverage area, where the program is incidental and directly linked to a program that is broadcast simultaneously by the national broadcaster in both analog mode and digital mode in that area;
(dc) the extent to which any amendments of laws of the Commonwealth are required to be made in order to allow a national broadcaster, during the simulcast period for a coverage area, to use multi‑channel transmission capacity to broadcast television programs in digital mode in that area, where:
(i) the programs are in addition to programs that are broadcast simultaneously by the national broadcaster in both analog mode and digital mode in that area; and
(ii) the broadcast of the programs is in accordance with the charter of the national broadcaster;
(dd) whether any amendments of laws of the Commonwealth should be made to deal with the scope of the services that are categorised as datacasting services;
(de) whether any amendments of Part 4 of this Schedule should be made;
(e) the regulatory arrangements that should apply to:
(i) the allocation of spectrum in the broadcasting services bands for use for the provision of datacasting services; and
(ii) the digital transmission of a community television service, free of charge, using spectrum in the broadcasting services bands allocated for use for the provision of datacasting services.
(2) A review under subclause (1) of the matter referred to in subparagraph (1)(e)(i) is to be conducted on the basis that:
(a) holders of commercial television broadcasting licences; and
(b) national broadcasters;
should not be eligible for the allocation of spectrum as mentioned in that subparagraph.
(3) The Minister must cause to be prepared a report of a review under subclause (1).
(4) 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.
(5) For the purposes of this clause, a regional licence area is underserved if, and only if, there are fewer than 3 commercial television broadcasting services in that area.
59A Reviews before 31 October 2000
(1) Before 31 October 2000, the Minister must cause to be conducted a review of the following matters:
(a) whether the ABA has sufficient powers to allow the most efficient use of the broadcasting services bands spectrum (including for the purposes of promoting the availability to audiences and users throughout Australia of a diverse range of datacasting services provided under, and in accordance with the conditions of, datacasting licences);
(b) if those powers are insufficient, what additional powers should be provided for in laws of the Commonwealth.
(2) The Minister must ensure that, in the conduct of a review under subclause (1), provision is made for:
(a) public consultation; and
(b) consultation with national broadcasters; and
(c) consultation with holders of commercial television broadcasting licences.
(3) The Minister must cause to be prepared a report of a review under subclause (1).
(4) 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.
(5) For the purposes of this clause, in determining the meaning of the expressions datacasting service and datacasting licence, it is to be assumed that all of the amendments made by the Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000 had commenced at the commencement of this clause.
60 Reviews before 1 January 2005
(1) Before 1 January 2005, the Minister must cause to be conducted a review of the following matters:
(b) whether paragraph 7(1)(m) of Schedule 2 (which deals with simulcast requirements for commercial television broadcasting licensees) should be amended or repealed;
(c) whether paragraph 7(1)(p) of Schedule 2 or clause 36 of this Schedule (which deal with subscription television broadcasting services and other matters) should be amended or repealed;
(e) whether all parts of the broadcasting services bands that are available for allocation for broadcasting services or datacasting services have been so identified;
(f) whether the parts of the broadcasting services bands that have been allocated for use for broadcasting services or datacasting services have been efficiently structured;
(g) whether the following provisions (which deal with additional commercial television broadcasting licences) should be amended or repealed:
(i) section 28A;
(ii) section 38A;
(iii) section 38B;
(iv) section 73;
(v) section 73A;
(vi) subclauses 6(5A), (5B) and (5C) of this Schedule;
(vii) paragraph 37E(1)(d) of this Schedule;
(viii) paragraph 37E(4)(c) of this Schedule;
(ix) paragraph 37G(1)(d) of this Schedule;
(h) the competitive and regulatory arrangements that should apply to the operation of a radiocommunications transmitter on or after 1 January 2007 for transmitting a datacasting service under a datacasting transmitter licence, where:
(i) there is in force a licence (other than a datacasting licence) allocated by the ABA under this Act authorising the provision of that service; or
(ii) that service is provided in accordance with a class licence;
(i) the arrangements that should apply in relation to revenue to be raised by the Commonwealth (whether by way of taxation or otherwise) in connection with the operation of a radiocommunications transmitter on or after 1 January 2007 for transmitting a datacasting service under a datacasting transmitter licence, where:
(i) there is in force a licence (other than a datacasting licence) allocated by the ABA under this Act authorising the provision of that service; or
(ii) that service is provided in accordance with a class licence;
(j) the conditions that should apply to commercial television broadcasting licences on or after 1 January 2007 for the provision of commercial television broadcasting services;
(k) the viability of creating an indigenous television broadcasting service and the regulatory arrangements that should apply to the digital transmission of such a service using spectrum in the broadcasting services bands.
(1A) A review under subclause (1) of a matter referred to in paragraph (1)(h) or (i) is to be conducted on the basis that, if the licence referred to in subparagraph (1)(h)(i) or (i)(i) is a commercial television broadcasting licence, the licensee should, on and after 1 January 2007, be treated in the same way as persons who held commercial television broadcasting licences immediately before that date, in relation to:
(a) the duration of related transmitter licences; and
(b) fees under the Television Licence Fees Act 1964.
(2) The Minister must cause to be prepared a report of a review under subclause (1).
(3) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.
60A Reviews before 1 January 2004
(1) Before 1 January 2004, the Minister must cause to be conducted a review of the following matters:
(a) whether Division 2 of Part 4 of this Schedule (which deals with HDTV quotas) should be amended or repealed;
(b) the regulatory arrangements that should apply to:
(i) the transmission of television programs by commercial television broadcasting licensees in HDTV digital mode in remote licence areas; and
(ii) the transmission of television programs by national broadcasters in HDTV digital mode in remote coverage areas.
(2) The Minister must cause to be prepared a report of a review under subclause (1).
(3) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.
60B Review before 1 January 2006
(1) Before 1 January 2006, the Minister must cause to be conducted a review of the content of any regulations made for the purposes of paragraph 6(3)(c) of this Schedule (which deals with the duration of the simulcast period).
(2) The Minister must cause to be prepared a report of a review under subclause (1).
(3) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.
60C Review before 1 January 2002
(1) Before 1 January 2002, the Minister must cause to be conducted a review of the regulatory arrangements that should apply to the digital transmission of community television broadcasting services using spectrum in the broadcasting services bands and how access to spectrum should be provided free of charge.
(2) The Minister must cause to be prepared a report of a review under subclause (1).
(3) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.
Part 9—Charges relating to the ABA’s costs
61 Charges relating to the ABA’s costs
(1) The ABA may, by written instrument, make determinations fixing charges for any matter in relation to which expenses are incurred by the ABA under:
(a) the commercial television conversion scheme; or
(b) the national television conversion scheme; or
(c) subclause 45(5), 45A(6) or 46(5) (which deal with the issue of certificates);
and specifying the persons by whom, and the times when, the charges are payable.
(2) A charge fixed under subclause (1) must not be such as to amount to taxation.
(3) A determination under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(4) Despite subsection (1), the ABA may not make a determination under paragraph (1)(a) in relation to expenses incurred:
(a) by it under the commercial television conversion scheme; and
(b) during the period starting on the day on which this subsection commences and ending on 31 December 2001.
Part 10—Review of decisions
62 Review by the AAT
Commercial television licensees
(1) An application may be made to the AAT for a review of any of the following decisions made by the ABA under the commercial television conversion scheme:
(a) a decision to refuse to approve an implementation plan, or a variation of an implementation plan, given to the ABA by the holder of a commercial television broadcasting licence;
(b) a decision that the holder of a commercial television broadcasting licence has failed to satisfy the ABA that exceptional circumstances exist as mentioned in subclause 8(2), (3) or (7) (which deal with surrender of transmitter licences);
(c) a decision requiring the ACA to issue a replacement transmitter licence to the holder of a commercial television broadcasting licence as mentioned in subclause 8(8) or (10A);
(d) a prescribed decision that relates to the holder of a commercial television broadcasting licence.
(2) An application under subclause (1) may only be made by the licensee concerned.
National broadcasters
(3) An application may be made to the AAT for a review of any of the following decisions made by the ABA under the national television conversion scheme:
(a) a decision that a national broadcaster has failed to satisfy the ABA that exceptional circumstances exist as mentioned in subclause 23(2), (3) or (7) (which deal with surrender of transmitter licences);
(b) a decision requiring the ACA to issue a replacement transmitter licence to a national broadcaster as mentioned in subclause 23(8) or (10A);
(c) a prescribed decision that relates to a national broadcaster.
(4) An application under subclause (3) may only be made by the national broadcaster concerned.
Transmitter access regime
(5) An application may be made to the AAT for a review of a decision of the ABA to issue a certificate under subclause 45(5), 45A(6) or 46(5).
(6) An application under subclause (5) may only be made by the access seeker concerned.
(7) An application may be made to the AAT for a review of a decision of the ABA to refuse to issue a certificate under subclause 45(5) or 46(5).
(8) An application under subclause (7) may only be made by the owner or operator of the broadcasting transmission tower concerned.
(9) An application may be made to the AAT for a review of a decision of the ABA to refuse to issue a certificate under subclause 45A(6).
(10) An application under subclause (9) may only be made by the owner or operator of the designated associated facility concerned.
63 Notification of decisions to include notification of reasons and appeal rights
If the ABA makes a decision that is reviewable under clause 62, 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 AAT for a review of the decision.
Part 11—Regional equalisation plan
64 Regional equalisation plan
(1) As soon as practicable after the commencement of this clause, the Minister must, by writing, formulate a plan (the regional equalisation plan) which specifies the measures proposed to be taken by the Minister or the Commonwealth Government:
(a) to facilitate the provision of commercial television broadcasting services transmitted in digital mode in regional licence areas; and
(b) to facilitate the provision of datacasting services transmitted in digital mode in regional licence areas by the holders of commercial television broadcasting licences.
Objectives
(2) In formulating or varying the regional equalisation plan, the Minister must have regard to the following objectives:
(a) the objective of maximising the diversity of choice in television services provided in regional licence areas;
(b) the objective of bringing to regional licence areas a similar range of entertainment and information services as are available in metropolitan licence areas;
(c) the objective of maintaining the financial viability of the commercial television broadcasting industry in regional licence areas;
(d) the objective of providing commercial television broadcasting services in regional licence areas that are relevant to, and responsive to, local needs in those areas;
(e) the objective of discouraging the concentration of media ownership in regional licence areas.
(3) Subclause (2) does not limit the matters to which the Minister may have regard.
Variation of plan
(4) The regional equalisation plan may be varied, but not revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901.
(5) Subclause (4) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to other instruments under this Act.
Disallowable instrument
(6) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Schedule 5—Online services
Note: See section 216B.
Part 1—Introduction
1 Explanation of the context of this Schedule
(1) This clause explains, in simplified form, the context of this Schedule within the proposed Australian scheme for dealing with content on the Internet.
This Schedule
(2) The first component of the proposed scheme is this Schedule, which regulates Internet service providers and Internet content hosts, but does not impose any obligations on:
(a) producers of content; or
(b) persons who upload or access content.
State/Territory laws and section 85ZE of the Crimes Act 1914
(3) The second component of the proposed scheme will be:
(a) State/Territory laws that impose obligations on:
(i) producers of content; and
(ii) persons who upload or access content; and
(b) section 85ZE of the Crimes Act 1914.
Non‑legislative initiatives
(4) The third component of the proposed scheme will be a range of non‑legislative initiatives directed towards:
(a) monitoring content on the Internet; and
(b) educating and advising the public about content on the Internet.
2 Simplified outline
The following is a simplified outline of this Schedule:
• This Schedule sets up a system for regulating certain aspects of the Internet industry.
• A person may complain to the ABA about prohibited content or potential prohibited content on the Internet, and the ABA must investigate the complaint.
• Internet content hosted in Australia is prohibited content if:
(a) the content has been classified RC (Refused Classification) or X by the Classification Board; or
(b) the content has been classified R by the Classification Board and access to the content is not subject to a restricted access system.
• Internet content hosted outside Australia is prohibited content if the Internet content has been classified RC (Refused Classification) or X by the Classification Board.
• Internet content is potential prohibited content if the content has not been classified by the Classification Board, but if it were to be classified, there is a substantial likelihood that the content would be prohibited content.
• If the ABA is satisfied that Internet content hosted in Australia is potential prohibited content, and is likely to be classified RC or X, the ABA must:
(a) request the Classification Board to classify the content; and
(b) give the relevant Internet content host an interim take‑down notice directing the host not to host the content pending the classification of the content.
• If the ABA is satisfied that Internet content hosted in Australia is potential prohibited content, and is likely to be classified R, the ABA must request the Classification Board to classify the content.
• If the ABA is satisfied that Internet content hosted in Australia is prohibited content, the ABA must give the relevant Internet content host a final take‑down notice directing the host not to host the prohibited content.
• If the ABA is satisfied that Internet content hosted outside Australia is prohibited content or potential prohibited content, the ABA must:
(a) if the ABA considers that the content is of a sufficiently serious nature to warrant referral to a law enforcement agency—notify the content to an Australian police force; and
(b) notify the content to Internet service providers so that the providers can deal with the content in accordance with procedures specified in an industry code or industry standard (for example, procedures for the filtering, by technical means, of such content).
• Bodies and associations that represent sections of the Internet industry may develop industry codes.
• The ABA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.
• The ABA may make online provider determinations regulating Internet service providers and Internet content hosts.
3 Definitions
In this Schedule, unless the contrary intention appears:
AAT means the Administrative Appeals Tribunal.
access includes:
(a) access that is subject to a pre‑condition (for example, the use of a password); and
(b) access by way of push technology; and
(c) access by way of a standing request.
access‑control system, in relation to Internet content, means a system under which:
(a) persons seeking access to the Internet content have been issued with a Personal Identification Number that provides a means of limiting access by other persons to the Internet content; or
(b) persons seeking access to the Internet content have been provided with some other means of limiting access by other persons to the Internet content.
adult means an individual who is 18 or older.
Australia, when used in a geographical sense, includes all the external Territories.
Australian police force means:
(a) the Australian Federal Police; or
(b) the police force of a State or Territory.
business day means a day that is not a Saturday, a Sunday or a public holiday in the place concerned.
child means an individual who is not an adult.
civil proceeding includes a civil action.
Classification Board means the Classification Board established by the Classification (Publications, Films and Computer Games) Act 1995.
Classification Review Board means the Classification Review Board established by the Classification (Publications, Films and Computer Games) Act 1995.
classified means classified under this Schedule.
computer game has the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995.
data storage device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.
designated notification scheme means a scheme:
(a) in the nature of a scheme for substituted service; and
(b) under which the ABA is taken, for the purposes of this Schedule, to have notified each Internet service provider of a matter or thing.
Note: For example, the ABA may make matters or things available on the Internet (with or without security measures).
film has the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995.
Note: Film is defined broadly in that Act, and includes any form of recording from which a visual image can be produced.
final take‑down notice means a notice under subclause 30(1) or paragraph 30(4)(b) of this Schedule.
immediate circle has the same meaning as in the Telecommunications Act 1997.
information means information:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms.
interim take‑down notice means a notice under subparagraph 30(2)(a)(i) of this Schedule.
Internet carriage service means a listed carriage service that enables end‑users to access the Internet.
Internet content means information that:
(a) is kept on a data storage device; and
(b) is accessed, or available for access, using an Internet carriage service;
but does not include:
(c) ordinary electronic mail; or
(d) information that is transmitted in the form of a broadcasting service.
Internet content host means a person who hosts Internet content in Australia, or who proposes to host Internet content in Australia.
Internet service provider has the meaning given by clause 8.
listed carriage service has the same meaning as in the Telecommunications Act 1997.
online provider rule has the meaning given by clause 79.
ordinary electronic mail does not include a posting to a newsgroup.
point‑to‑multipoint service has the same meaning as in the Telecommunications Act 1997.
potential prohibited content has the meaning given by clause 11.
prohibited content has the meaning given by clause 10.
restricted access system has the meaning given by clause 4.
special access‑prevention notice means a notice under clause 47.
special take‑down notice means a notice under clause 36.
standard access‑prevention notice means a notice under paragraph 40(1)(c) of this Schedule.
4 Restricted access system
(1) The ABA may, by written instrument, declare that a specified access‑control system is a restricted access system in relation to Internet content for the purposes of this Schedule. A declaration under this subclause has effect accordingly.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(2) In making an instrument under subclause (1), the ABA must have regard to:
(a) the objective of protecting children from exposure to Internet content that is unsuitable for children; and
(b) such other matters (if any) as the ABA considers relevant.
(3) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
5 Internet content that consists of a film
For the purposes of this Schedule, in determining whether Internet content consists of the entire unmodified contents of a film, disregard any differences between:
(a) the technique used to embody sounds and/or visual images in the film; and
(b) the technique used to embody the sounds and/or visual images in a form in which they can be accessed on the Internet.
6 Replacement of X classification
(1) If the Classification (Publications, Films and Computer Games) Act 1995 is amended by replacing the classification X with another classification, this Schedule has effect as if each reference in this Schedule to the classification X were a reference to the other classification.
(2) To avoid doubt, the rule in subclause (1) applies even if the other classification is not equivalent to the classification X.
7 Extended meaning of use
Unless the contrary intention appears, a reference in this Schedule to the use of a thing is a reference to the use of the thing either:
(a) in isolation; or
(b) in conjunction with one or more other things.
Part 2—Internet service providers
8 Internet service providers
Basic definition
(1) For the purposes of this Schedule, if a person supplies, or proposes to supply, an Internet carriage service to the public, the person is an Internet service provider.
Declared Internet service providers
(2) The Minister may, by written instrument, declare that a specified person who supplies, or proposes to supply, a specified Internet carriage service is an Internet service provider for the purposes of this Schedule. A declaration under this subclause has effect accordingly.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(3) An instrument under subclause (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
9 Supply to the public
(1) This clause sets out the circumstances in which an Internet carriage service is taken, for the purposes of subclause 8(1), to be supplied to the public.
(2) If:
(a) an Internet carriage service is used for the carriage of information between 2 end‑users; and
(b) each end‑user is outside the immediate circle of the supplier of the service;
the service is supplied to the public.
Note: If a company makes Internet content available for access on the Internet, and an individual obtains access to the content using an Internet carriage service, the company and the individual are end‑users in relation to the carriage of the content by the Internet carriage service.
(3) If:
(a) an Internet carriage service is used to supply point‑to‑multipoint services to end‑users; and
(b) at least one end‑user is outside the immediate circle of the supplier of the service;
the service is supplied to the public.
(4) If:
(a) an Internet carriage service is used to supply designated content services (other than point‑to‑multipoint services) to end‑users; and
(b) at least one end‑user is outside the immediate circle of the supplier of the service;
the service is supplied to the public.
(5) For the purposes of this clause, a designated content service is a content service of a kind specified in a written determination made by the Minister.
(6) A determination under subclause (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(7) In this clause:
content service has the same meaning as in the Telecommunications Act 1997.
Part 3—Prohibited content
Division 1—Prohibited content and potential prohibited content
10 Prohibited content
Internet content hosted in Australia
(1) For the purposes of this Schedule, Internet content hosted in Australia is prohibited content if:
(a) the Internet content has been classified RC or X by the Classification Board; or
(b) both:
(i) the Internet content has been classified R by the Classification Board; and
(ii) access to the Internet content is not subject to a restricted access system.
Internet content hosted outside Australia
(2) For the purposes of this Schedule, Internet content hosted outside Australia is prohibited content if the Internet content has been classified RC or X by the Classification Board.
Note: Classified means classified under this Schedule—see clause 3.
11 Potential prohibited content
(1) For the purposes of this Schedule, Internet content is potential prohibited content if:
(a) the Internet content has not been classified by the Classification Board; and
(b) if the Internet content were to be classified by the Classification Board, there is a substantial likelihood that the Internet content would be prohibited content.
(2) In determining whether particular Internet content is potential prohibited content, it is to be assumed that this Schedule authorised the Classification Board to classify the Internet content.
12 Classification of Internet content that consists of a film or a computer game
Deemed classification
(1) If:
(a) Internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the film or computer game has been classified under the Classification (Publications, Films and Computer Games) Act 1995;
the Internet content is taken to have been classified by the Classification Board under this Schedule in the same way as the film or the computer game, as the case may be, was classified under that Act.
Actual classification
(2) If:
(a) Internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the film or computer game has not been classified under the Classification (Publications, Films and Computer Games) Act 1995;
the Classification Board is to classify the Internet content under this Schedule in a corresponding way to the way in which the film or computer game, as the case may be, would be classified under the Classification (Publications, Films and Computer Games) Act 1995.
13 Classification of Internet content that does not consist of a film or a computer game
If Internet content does not consist of:
(a) the entire unmodified contents of a film; or
(b) a computer game;
the Classification Board is to classify the Internet content under this Schedule in a corresponding way to the way in which a film would be classified under the Classification (Publications, Films and Computer Games) Act 1995.
Division 2—Reclassification
14 Reclassification of Internet content
(1) If Internet content has been classified by the Classification Board (otherwise than because of subclause 12(1)):
(a) the Classification Board must not reclassify the content within the 2‑year period beginning on the day on which the classification occurred; and
(b) after that 2‑year period, the Classification Board may reclassify the content.
(2) The Classification Board may act under paragraph (1)(b):
(a) if required to do so by the Minister or the ABA; or
(b) on the Classification Board’s own initiative.
(3) If the Minister or the ABA requires the Classification Board to act under paragraph (1)(b), the Classification Board must do so.
(4) If Internet content is reclassified by the Classification Board, the Classification Board must notify the ABA accordingly.
15 Notice of intention to reclassify Internet content
(1) If:
(a) Internet content has been classified by the Classification Board (otherwise than because of subclause 12(1)); and
(b) the Classification Board intends to reclassify the content;
then:
(c) the Director of the Classification Board must give notice of that intention, inviting submissions about the matter; and
(d) the Director of the Classification Board must cause the contents of the notice to be published, in such manner as the Director decides, at least 30 days before the Classification Board proposes to consider the matter; and
(e) the Director of the Classification Board must give a copy of the notice to the Minister and to the ABA at least 30 days before the Classification Board proposes to consider the matter.
(2) A notice under paragraph (1)(c) must specify the day on which the Board proposes to consider the matter.
(3) The matters that the Classification Board is to take into account in reclassifying the Internet content include issues raised in submissions made to the Classification Board about the matter.
Division 3—Review of classification decisions
Subdivision A—Review of classification of Internet content
16 Persons who may apply for review
(1) If Internet content has been classified by the Classification Board (otherwise than because of subclause 12(1)), any of the following persons may apply to the Classification Review Board for a review of the classification:
(a) the Minister;
(b) the ABA;
(c) an Internet service provider who supplies an Internet carriage service that enables end‑users to access the content;
(d) an Internet content host who hosts the content in Australia, or proposes to host the content in Australia;
(e) a person aggrieved by the classification.
(2) Without limiting paragraph (1)(e), if the classification referred to in that paragraph is a restricted classification, the following persons or bodies are taken to be persons aggrieved by the classification:
(a) a person who has engaged in a series of activities relating to, or research into, the contentious aspects of the theme or subject matter of the Internet content concerned;
(b) an organisation or association, whether incorporated or not, whose objects or purposes include, and whose activities relate to, the contentious aspects of that theme or subject matter.
(3) However, a person or body is not aggrieved by a restricted classification because of subclause (2) if the classification was made before:
(a) the person engaged in a series of activities relating to, or research into, the contentious aspects of the theme or subject matter of the Internet content concerned; or
(b) the organisation or association was formed, or its objects or purposes included and its activities related to, the contentious aspects of that theme or subject matter.
(4) In this clause:
restricted classification means:
(a) for Internet content that does not consist of a computer game—the classification MA, R, X or RC; or
(b) for Internet content that consists of a computer game—the classification MA (15+) or RC.
17 Applications for review
(1) An application for review of a classification must be:
(a) in writing; and
(b) made in a form approved in writing by the Convenor of the Classification Review Board; and
(c) signed by or on behalf of the applicant; and
(d) except for an application made by the Minister—accompanied by the fee ascertained under subclause (4).
(2) An application by the Minister or the ABA for review of a classification may be made at any time.
(3) Any other application for review of a classification must be made:
(a) within 30 days after the applicant became aware of the classification; or
(b) within such longer period as the Classification Review Board allows.
(4) Regulations prescribing fees for the purposes of paragraph 43(1)(d) of the Classification (Publications, Films and Computer Games) Act 1995 apply, subject to such modifications (if any) as are specified in regulations made for the purposes of this subclause, to a review of a classification under this Schedule in a corresponding way to the way in which they apply to a review of a classification under that Act.
(5) A fee under subclause (1) must not be such as to amount to taxation.
(6) In this clause:
modifications includes additions, omissions and substitutions.
18 Review
(1) For the purposes of reviewing a classification of Internet content, the Classification Review Board:
(a) may exercise all the powers and discretions that are conferred on the Classification Board by this Schedule; and
(b) must make a decision in writing:
(i) confirming the classification; or
(ii) reclassifying the content.
(2) If the Classification Review Board reclassifies the Internet content, this Schedule (other than this Subdivision) has effect as if the content had been reclassified by the Classification Board.
Subdivision B—Review of Internet content that consists of a film or a computer game
19 Review of classification of Internet content that consists of a film or a computer game
If:
(a) Internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the film or computer game has been classified under the Classification (Publications, Films and Computer Games) Act 1995; and
(c) the decision to classify the film or computer game is reviewed by the Classification Review Board under that Act; and
(d) as a result of the review, the Classification Review Board classifies the film or computer game under that Act;
this Schedule has effect as if the film or computer game had been classified by the Classification Board under this Schedule in the same way as the film or computer game was classified under that Act by the Classification Review Board.
Division 4—Miscellaneous
20 Fees for classification of Internet content
(1) The ABA is liable to pay fees in respect of the classification under this Schedule of Internet content.
(2) The amount of a fee payable under subclause (1) is ascertained under whichever of subclause (3), (4) or (5) is applicable.
Films
(3) If Internet content consists of the entire unmodified contents of a film, regulations prescribing fees for the purposes of paragraph 14(1)(d) of the Classification (Publications, Films and Computer Games) Act 1995 apply, subject to such modifications (if any) as are specified in regulations made for the purposes of this subclause, in relation to the classification under this Schedule of the content in a corresponding way to the way in which they apply to the classification under that Act of the film.
Computer games
(4) If Internet content consists of a computer game, regulations prescribing fees for the purposes of paragraph 17(1)(d) of the Classification (Publications, Films and Computer Games) Act 1995 apply, subject to such modifications (if any) as are specified in regulations made for the purposes of this subclause, in relation to the classification under this Schedule of the content in a corresponding way to the way in which they apply to the classification under that Act of the computer game.
Content other than films or computer games
(5) If Internet content does not consist of:
(a) the entire unmodified contents of a film; or
(b) a computer game;
regulations prescribing fees for the purposes of paragraph 14(1)(d) of the Classification (Publications, Films and Computer Games) Act 1995 apply, subject to such modifications (if any) as are specified in regulations made for the purposes of this subclause, in relation to the classification under this Schedule of the content in a corresponding way to the way in which they apply to the classification under that Act of a film.
Fees must not be such as to amount to taxation
(6) A fee under subclause (1) must not be such as to amount to taxation.
Definitions
(7) In this clause:
classification under this Schedule means classification under this Schedule that is sought by the ABA (otherwise than by way of an application under clause 16).
modifications includes additions, omissions and substitutions.
21 Decisions of the Classification Board etc.
(1) Section 57 of the Classification (Publications, Films and Computer Games) Act 1995 applies to the consideration by the Classification Board of a matter arising under this Schedule in a corresponding way to the way in which it applies to the consideration of an application under that Act.
(2) To avoid doubt, sections 10, 19, 20, 22, 23A, 24, 25, 26, 27, 28 and 44A, and Division 6 of Part 2, of the Classification (Publications, Films and Computer Games) Act 1995 do not apply to a classification under this Schedule.
Part 4—Complaints to, and investigations by, the ABA
Division 1—Making of complaints to the ABA
22 Complaints about prohibited content or potential prohibited content
Complaints about access to prohibited content or potential prohibited content
(1) If a person has reason to believe that end‑users in Australia can access prohibited content or potential prohibited content using an Internet carriage service, the person may make a complaint to the ABA about the matter.
Complaints relating to Internet content hosts
(2) If a person has reason to believe that an Internet content host is:
(a) hosting prohibited content in Australia; or
(b) hosting potential prohibited content in Australia;
the person may make a complaint to the ABA about the matter.
Content of complaint
(3) A complaint under subclause (1) or (2) about particular Internet content must:
(a) identify the Internet content; and
(b) set out how to access the Internet content (for example: set out a URL, a password, or the name of a newsgroup); and
(c) if the complainant knows the country or countries in which the Internet content is hosted—set out the name of that country or those countries; and
(d) set out the complainant’s reasons for believing that the Internet content is prohibited content or potential prohibited content; and
(e) set out such other information (if any) as the ABA requires.
(4) The rule in paragraph (3)(b) does not apply to a complaint to the extent (if any) to which finding out how to access the Internet content would cause the complainant to contravene a law of a State or Territory.
Transitional
(5) A person is not entitled to make a complaint under subclause (1) or (2) about something that occurs before 1 January 2000.
23 Complaints about breaches of online provider rules etc.
If a person has reason to believe that an Internet service provider, or an Internet content host:
(a) has contravened a code registered under Part 5 of this Schedule that is applicable to the provider or host; or
(b) has contravened an online provider rule that is applicable to the provider or host;
the person may make a complaint to the ABA about the matter.
24 Form of complaint
(1) A complaint under this Division is to be in writing.
(2) However, the ABA may permit complaints to be given, in accordance with specified software requirements, by way of a specified kind of electronic transmission.
25 Residency etc. of complainant
A person is not entitled to make a complaint under this Division unless the person is:
(a) an individual who resides in Australia; or
(b) a body corporate that carries on activities in Australia; or
(c) the Commonwealth, a State or a Territory.
Division 2—Investigations by the ABA
26 Investigation of complaints by the ABA
(1) The ABA must investigate a complaint under Division 1.
(2) However, the ABA need not investigate the complaint if:
(a) the ABA is satisfied that the complaint is:
(i) frivolous; or
(ii) vexatious; or
(iii) not made in good faith; or
(b) the ABA has reason to believe that the complaint was made for the purpose, or for purposes that include the purpose, of frustrating or undermining the effective administration of this Schedule.
(3) The ABA must notify the complainant of the results of such an investigation.
(4) The ABA may terminate such an investigation if it is of the opinion that it does not have sufficient information to conclude the investigation.
27 ABA may investigate matters on its own initiative
(1) The ABA may investigate any of the following matters if the ABA thinks that it is desirable to do so:
(a) whether an Internet service provider is supplying an Internet carriage service that enables end‑users to access prohibited content or potential prohibited content;
(b) whether an Internet content host is hosting prohibited content, or potential prohibited content, in Australia;
(c) whether an Internet service provider, or an Internet content host:
(i) has contravened a code registered under Part 5 of this Schedule that is applicable to the provider or host; or
(ii) has contravened an online provider rule that is applicable to the provider or host.
(2) Paragraphs (1)(a) and (b) do not authorise the ABA to investigate something that occurs before 1 January 2000.
28 Conduct of investigations
(1) An investigation under this Division is to be conducted as the ABA thinks fit.
(2) The ABA may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as it thinks fit.
(3) This clause has effect subject to Part 13 of this Act (which confers certain investigative powers on the ABA).
29 Protection from civil proceedings
Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:
(a) the making of a complaint under Division 1;
(b) the making of a statement to, or the giving of a document or information to, the ABA in connection with an investigation under this Division.
Division 3—Action to be taken in relation to a complaint about prohibited content hosted in Australia
30 Action to be taken in relation to a complaint about prohibited content hosted in Australia
Prohibited content
(1) If, in the course of an investigation under Division 2, the ABA is satisfied that Internet content hosted in Australia is prohibited content, the ABA must give the relevant Internet content host a written notice (a final take‑down notice) directing the Internet content host not to host the prohibited content.
Potential prohibited content
(2) The following provisions have effect if, in the course of an investigation under Division 2, the ABA is satisfied that Internet content hosted in Australia is potential prohibited content:
(a) if the ABA is satisfied that, if the Internet content were to be classified by the Classification Board, there is a substantial likelihood that the Internet content would be classified RC or X—the ABA must:
(i) give the relevant Internet content host a written notice (an interim take‑down notice) directing the Internet content host not to host the Internet content until the ABA notifies the host under subclause (4) of the Classification Board’s classification of the Internet content; and
(ii) request the Classification Board to classify the Internet content;
(b) if the ABA is satisfied that, if the Internet content were to be classified by the Classification Board, there is a substantial likelihood that the Internet content would be classified R— the ABA must request the Classification Board to classify the Internet content.
(3) If the Classification Board receives a request under paragraph (2)(a) or (b) to classify particular Internet content, the Classification Board must:
(a) classify the content; and
(b) inform the ABA, in writing, of its classification.
(4) If the ABA is informed under paragraph (3)(b) of the classification of particular Internet content, the ABA must:
(a) give the relevant Internet content host a written notice setting out the classification; and
(b) in a case where the effect of the classification is that the Internet content is prohibited content—give the Internet content host a written notice (a final take‑down notice) directing the host not to host the prohibited content.
(5) If the ABA requests the Classification Board to classify particular Internet content:
(a) the ABA must give the Classification Board:
(i) sufficient information about the content to enable the Classification Board to access the content; or
(ii) a copy of the content; and
(b) the ABA must give the Classification Board sufficient information about the content to enable the Classification Board to classify the content; and
(c) the ABA may, at the request of the Classification Board or on its own initiative, give the Classification Board additional information about the content if the ABA is of the opinion that the additional information would be likely to facilitate the classification of the content.
(6) If the ABA makes a decision under paragraph (2)(b) to request the Classification Board to classify Internet content, the ABA must give the relevant Internet content host a written notice setting out the decision.
31 Deferral of action in order to avoid prejudicing a criminal investigation
(1) If:
(a) in the course of an investigation under Division 2, the ABA is satisfied that Internet content hosted in Australia is prohibited content or potential prohibited content; and
(b) apart from this subclause, the ABA would be required to take action under subclause 30(1) or (2) in relation to the content; and
(c) a member of an Australian police force satisfies the ABA that the taking of that action should be deferred until the end of a particular period in order to avoid prejudicing a criminal investigation;
the ABA may defer taking that action until the end of that period.
(2) Subclause (1) has effect despite anything in clause 30.
32 Revocation of final take‑down notices—subsequent implementation of restricted access system for R‑rated content
(1) If:
(a) a final take‑down notice relating to particular Internet content is applicable to a particular Internet content host; and
(b) the Internet content has been classified R by the Classification Board; and
(c) at the time when the final take‑down notice was issued, access to the Internet content was not subject to a restricted access system; and
(d) the Internet content host satisfies the ABA that:
(i) at a later time when the final take‑down notice was in force, a restricted access system was implemented in relation to the Internet content; and
(ii) as a result of that implementation, the content ceases to be prohibited content;
the ABA must revoke the final take‑down notice.
(2) If a final take‑down notice is revoked under this clause, the ABA must give the Internet content host concerned a written notice stating that the final take‑down notice has been revoked.
33 Revocation of interim take‑down notices—voluntary withdrawal of Internet content
(1) If:
(a) an interim take‑down notice relating to particular Internet content is applicable to a particular Internet content host; and
(b) before the Classification Board classifies the Internet content, the Internet content host:
(i) ceases to host the Internet content; and
(ii) gives the ABA a written undertaking not to host the Internet content;
the ABA may:
(c) accept the undertaking; and
(d) revoke the interim take‑down notice; and
(e) by written notice given to the Classification Board, determine that the Classification Board is not required to comply with subclause 30(3) in relation to the classification of the Internet content.
(2) If an interim take‑down notice is revoked under this clause, the ABA must give the Internet content host concerned a written notice stating that the interim take‑down notice has been revoked.
34 Revocation of take‑down notices—reclassification of Internet content
(1) If:
(a) Internet content has been classified by the Classification Board (otherwise than because of subclause 12(1)); and
(b) a final take‑down notice relating to the Internet content is applicable to a particular Internet content host; and
(c) the Classification Board reclassifies the Internet content; and
(d) as a result of the reclassification, the content ceases to be prohibited content;
the ABA must revoke the final take‑down notice.
(2) If a final take‑down notice is revoked under this clause, the ABA must give the Internet content host concerned a written notice stating that the final take‑down notice has been revoked.
35 Revocation of take‑down notices—reclassification of Internet content that consists of a film or a computer game
(1) If:
(a) Internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the Classification Board reclassifies the film or computer game under the Classification (Publications, Films and Computer Games) Act 1995; and
(c) a final take‑down notice relating to the Internet content is applicable to a particular Internet content host; and
(d) as a result of the reclassification, the Internet content ceases to be prohibited content;
the ABA must revoke the final take‑down notice.
(2) If a final take‑down notice is revoked under this clause, the ABA must give the Internet content host concerned a written notice stating that the final take‑down notice has been revoked.
36 Anti‑avoidance—special take‑down notices
If:
(a) an interim take‑down notice or a final take‑down notice relating to particular Internet content is applicable to a particular Internet content host; and
(b) the ABA is satisfied that the Internet content host is hosting in Australia, or is proposing to host in Australia, Internet content (the similar Internet content) that is the same as, or substantially similar to, the Internet content identified in the interim take‑down notice or the final take‑down notice, as the case may be; and
(c) the ABA is satisfied that the similar Internet content is prohibited content or potential prohibited content;
the ABA may give the Internet content host a written notice (a special take‑down notice) directing the host not to host the similar Internet content at any time when the interim take‑down notice or final take‑down notice, as the case may be, is in force.
37 Compliance with rules relating to prohibited content etc.
Interim take‑down notice
(1) An Internet content host must comply with an interim take‑down notice that applies to the host as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the host.
Final take‑down notice
(2) An Internet content host must comply with a final take‑down notice that applies to the host as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the host.
Special take‑down notice
(3) An Internet content host must comply with a special take‑down notice that applies to the host as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the host.
Undertaking
(4) An Internet content host must comply with an undertaking given by the host and accepted under clause 33.
Note: For enforcement, see Part 6 of this Schedule.
38 Identification of Internet content
Internet content may be identified in a notice under this Division:
(a) by setting out the content; or
(b) by describing the content; or
(c) in any other way.
39 Application of notices under this Division
A notice under this Division applies to particular Internet content only to the extent to which the content is accessed, or available for access, from an Internet site, or a distinct part of an Internet site, specified in the notice.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Division 4—Action to be taken in relation to a complaint about prohibited content hosted outside Australia
40 Action to be taken in relation to a complaint about prohibited content hosted outside Australia
(1) If, in the course of an investigation under Division 2, the ABA is satisfied that Internet content hosted outside Australia is prohibited content or potential prohibited content, the ABA must:
(a) if the ABA considers the content is of a sufficiently serious nature to warrant referral to a law enforcement agency (whether in or outside Australia)—notify the content to:
(i) a member of an Australian police force; or
(ii) if there is an arrangement between the ABA and the chief (however described) of an Australian police force under which the ABA is authorised to notify the content to a another person or body (whether in or outside Australia)—that other person or body; and
(b) if a code registered, or standard determined, under Part 5 of this Schedule deals with the matters referred to in subclause 60(2)—notify the content to Internet service providers under the designated notification scheme set out in the code or standard, as the case may be; and
(c) if paragraph (b) does not apply—give each Internet service provider known to the ABA a written notice (a standard access‑prevention notice) directing the provider to take all reasonable steps to prevent end‑users from accessing the content.
Note: The ABA may be taken to have given a notice under paragraph (c)—see clause 51.
(2) For the purposes of paragraph (1)(c), in determining whether particular steps are reasonable, regard must be had to:
(a) the technical and commercial feasibility of taking the steps; and
(b) the matters set out in subsection 4(3).
(3) Subclause (2) does not, by implication, limit the matters to which regard must be had.
Recognised alternative access‑prevention arrangements
(4) An Internet service provider is not required to comply with a standard access‑prevention notice in relation to a particular end‑user if access by the end‑user is subject to a recognised alternative access‑prevention arrangement (as defined by subclause (5)) that is applicable to the end‑user.
(5) The ABA may, by written instrument, declare that a specified arrangement is a recognised alternative access‑prevention arrangement for the purposes of the application of this Division to one or more specified end‑users if the ABA is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end‑users to prohibited content and potential prohibited content.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(6) The following are examples of arrangements that could be declared to be recognised alternative access‑prevention arrangements under subclause (5):
(a) an arrangement that involves the use of regularly updated Internet content filtering software;
(b) an arrangement that involves the use of a “family‑friendly” filtered Internet carriage service.
(7) An instrument under subclause (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Referral to law enforcement agency
(8) The manner in which Internet content may be notified under paragraph (1)(a) to a member of an Australian police force includes (but is not limited to) a manner ascertained in accordance with an arrangement between the ABA and the chief (however described) of the police force concerned.
(9) If a member of an Australian police force is notified of particular Internet content under this clause, the member may notify the content to a member of another law enforcement agency (whether in or outside Australia).
(10) This clause does not, by implication, limit the ABA’s powers to refer other matters to a member of an Australian police force.
41 Deferral of action in order to avoid prejudicing a criminal investigation
(1) If:
(a) in the course of an investigation under Division 2, the ABA is satisfied that Internet content hosted outside Australia is prohibited content or potential prohibited content; and
(b) apart from this subclause, the ABA would be required to take action under subclause 40(1) in relation to the content; and
(c) a member of an Australian police force satisfies the ABA that the taking of that action should be deferred until the end of a particular period in order to avoid prejudicing a criminal investigation;
the ABA may defer taking that action until the end of that period.
(2) Subclause (1) has effect despite anything in clause 40.
42 Withdrawal of notification of content—reclassification of Internet content
(1) If:
(a) Internet content has been classified by the Classification Board (otherwise than because of subclause 12(1)); and
(b) the Internet content has been notified to Internet service providers as mentioned in paragraph 40(1)(b) of this Schedule; and
(c) the Classification Board reclassifies the Internet content; and
(d) as a result of the reclassification, the Internet content ceases to be prohibited content;
the notification of the Internet content is taken to have been withdrawn.
(2) If:
(a) a notification of Internet content is withdrawn under subclause (1); and
(b) a code registered, or standard determined, under Part 5 of this Schedule deals with the matters referred to in subclause 60(2);
the ABA must notify the withdrawal to Internet service providers under the designated notification scheme set out in the code or standard, as the case may be.
43 Withdrawal of notification of content—reclassification of Internet content that consists of a film or a computer game
(1) If:
(a) Internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the Classification Board reclassifies the film or computer game under the Classification (Publications, Films and Computer Games) Act 1995; and
(c) the Internet content has been notified to Internet service providers as mentioned in paragraph 40(1)(b) of this Schedule; and
(d) as a result of the reclassification, the Internet content ceases to be prohibited content;
the notification of the Internet content is taken to have been withdrawn.
(2) If:
(a) a notification of Internet content is withdrawn under subclause (1); and
(b) a code registered, or standard determined, under Part 5 of this Schedule deals with the matters referred to in subclause 60(2);
the ABA must notify the withdrawal to Internet service providers under the designated notification scheme set out in the code or standard, as the case may be.
44 Revocation of standard access‑prevention notice—reclassification of Internet content
(1) If:
(a) Internet content has been classified by the Classification Board (otherwise than because of subclause 12(1)); and
(b) a standard access‑prevention notice relating to the Internet content is applicable to a particular Internet service provider; and
(c) the Classification Board reclassifies the Internet content; and
(d) as a result of the reclassification, the content ceases to be prohibited content;
the ABA is taken to have revoked the standard access‑prevention notice.
(2) If a standard access‑prevention notice is revoked under this clause, the ABA must give the Internet service provider concerned a written notice stating that the standard access‑prevention notice has been revoked.
Note: The ABA may be taken to have given a notice under subclause (2)—see clause 51.
45 Revocation of standard access‑prevention notice—reclassification of Internet content that consists of a film or a computer game
(1) If:
(a) Internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the Classification Board reclassifies the film or computer game under the Classification (Publications, Films and Computer Games) Act 1995; and
(c) a standard access‑prevention notice relating to the Internet content is applicable to a particular Internet service provider; and
(d) as a result of the reclassification, the Internet content ceases to be prohibited content;
the ABA is taken to have revoked the standard access‑prevention notice.
(2) If a standard access‑prevention notice is revoked under this clause, the ABA must give the Internet service provider concerned a written notice stating that the standard access‑prevention notice has been revoked.
Note: The ABA may be taken to have given a notice under subclause (2)—see clause 51.
46 Anti‑avoidance—notified Internet content
(1) If:
(a) particular Internet content has been notified to Internet service providers as mentioned in paragraph 40(1)(b) of this Schedule; and
(b) the notification has not been withdrawn; and
(c) the ABA is satisfied that Internet content (the similar Internet content) that is the same as, or substantially similar to, the first‑mentioned Internet content is being hosted outside Australia; and
(d) the ABA is satisfied that the similar Internet content is prohibited content or potential prohibited content; and
(e) a code registered, or standard determined, under Part 5 of this Schedule deals with the matters referred to in subclause 60(2);
the ABA must notify the similar Internet content to Internet service providers under the designated notification scheme set out in the code or standard, as the case may be.
(2) If:
(a) particular Internet content is notified to Internet service providers as mentioned in paragraph 40(1)(b) of this Schedule; and
(b) as a result of the application of subclause (1) to that content, the ABA notifies similar Internet content to Internet service providers in accordance with subclause (1); and
(c) the notification of the first‑mentioned content is withdrawn;
the notification of the similar Internet content is taken to have been withdrawn.
(3) If:
(a) a notification of Internet content is withdrawn under subclause (2); and
(b) a code registered, or standard determined, under Part 5 of this Schedule deals with the matters referred to in subclause 60(2);
the ABA must notify the withdrawal to Internet service providers under the designated notification scheme set out in the code or standard, as the case may be.
47 Anti‑avoidance—special access‑prevention notice
(1) If:
(a) a standard access‑prevention notice relating to particular Internet content is applicable to a particular Internet service provider; and
(b) the ABA is satisfied that the Internet service provider is supplying an Internet carriage service that enables end‑users to access Internet content (the similar Internet content) that is the same as, or substantially similar to, the Internet content identified in the standard access‑prevention notice; and
(c) the ABA is satisfied that the similar Internet content is prohibited content or potential prohibited content;
the ABA may give the provider a written notice (special access‑prevention notice) directing the provider to take all reasonable steps to prevent end‑users from accessing the similar Internet content at any time when the standard access‑prevention notice is in force.
Note: The ABA may be taken to have given a notice under this clause—see clause 51.
(2) For the purposes of subclause (1), in determining whether particular steps are reasonable, regard must be had to:
(a) the technical and commercial feasibility of taking the steps; and
(b) the matters set out in subsection 4(3).
(3) Subclause (2) does not, by implication, limit the matters to which regard must be had.
Recognised alternative access‑prevention arrangements
(4) An Internet service provider is not required to comply with a special access‑prevention notice in relation to a particular end‑user if access by the end‑user is subject to a recognised alternative access‑prevention arrangement (as defined by subclause 40(5)) that is applicable to the end‑user.
48 Compliance with access‑prevention notices
Standard access‑prevention notice
(1) An Internet service provider must comply with a standard access‑prevention notice that applies to the provider as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the provider.
Special access‑prevention notice
(2) An Internet service provider must comply with a special access‑prevention notice that applies to the provider as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the provider.
Note: For enforcement, see Part 6 of this Schedule.
49 Notification of Internet content
Internet content may be notified in accordance with this Division by:
(a) setting out the content; or
(b) describing the content; or
(c) in any other way.
50 Application of notifications under this Division
A notification under this Division applies to particular Internet content only to the extent to which the content is accessed, or available for access, from an Internet site, or a distinct part of an Internet site, specified in the notification.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
51 ABA may be taken to have issued access‑prevention notices
(1) Subject to subclause (2), the ABA may, by written instrument, formulate a scheme:
(a) in the nature of a scheme for substituted service; and
(b) under which the ABA is taken, for the purposes of this Schedule, to have done any or all of the following:
(i) given each Internet service provider a standard access‑prevention notice under paragraph 40(1)(c) of this Schedule;
(ii) in a case where a standard access‑prevention notice is revoked under clause 44 or 45—given each Internet service provider a notice of the revocation under whichever of subclause 44(2) or 45(2) is applicable;
(iii) given each Internet service provider a special access‑prevention notice under clause 47.
(2) It is a minimum requirement for a scheme formulated under subclause (1) that each Internet service provider be alerted by electronic means to the existence of a notice.
Note: For example, it is not sufficient for the ABA to make notices available on the Internet (with or without security measures) without notifying Internet service providers that a notice has been issued.
(3) Paragraph 40(1)(c) of this Schedule has effect, in relation to a scheme under subclause (1), as if the reference in that paragraph to each Internet service provider known to the ABA were a reference to each Internet service provider.
(4) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Part 5—Industry codes and industry standards
Division 1—Simplified outline
52 Simplified outline
The following is a simplified outline of this Part.
• Bodies and associations that represent sections of the Internet industry may develop industry codes.
• Industry codes may be registered by the ABA.
• Compliance with an industry code is voluntary unless the ABA directs a particular participant in the Internet industry to comply with the code.
• The ABA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.
• Compliance with industry standards is mandatory.
Division 2—Interpretation
53 Industry codes
For the purposes of this Part, an industry code is a code developed under this Part (whether or not in response to a request under this Part).
54 Industry standards
For the purposes of this Part, an industry standard is a standard determined under this Part.
55 Internet activity
For the purposes of this Part, an Internet activity is an activity that consists of:
(a) supplying an Internet carriage service; or
(b) hosting Internet content in Australia.
56 Sections of the Internet industry
(1) For the purposes of this Part, sections of the Internet industry are to be ascertained in accordance with this clause.
(2) For the purposes of this Part, each of the following groups is a section of the Internet industry:
(a) Internet service providers;
(b) Internet content hosts.
57 Participants in a section of the Internet industry
For the purposes of this Part, if a person is a member of a group that constitutes a section of the Internet industry, the person is a participant in that section of the Internet industry.
58 Designated body
(1) The Minister may, by written instrument, declare that a specified body or association is the designated body for the purposes of this Part. The declaration has effect accordingly.
(2) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Division 3—General principles relating to industry codes and industry standards
59 Statement of regulatory policy
(1) The Parliament intends that bodies or associations that the ABA is satisfied represent the Internet content host section of the Internet industry should develop a single code (industry code) that is to apply to participants in that section of the industry in relation to the Internet activities of the participants.
(2) The Parliament intends that bodies or associations that the ABA is satisfied represent the Internet service provider section of the Internet industry should develop no more than 2 codes (industry codes) that are to apply to participants in that section of the industry in relation to the Internet activities of the participants.
(3) The Parliament intends that, for the Internet service provider section of the Internet industry, one of those industry codes should deal exclusively with the matters set out in subclause 60(2).
(4) The Parliament intends that the ABA should make reasonable efforts to ensure that, for each section of the Internet industry, either:
(a) an industry code is registered under this Part before 1 January 2000; or
(b) an industry standard is registered under this Part before 31 March 2000.
60 Matters that must be dealt with by industry codes and industry standards
Both sections of the Internet industry
(1) The Parliament intends that, for both sections of the Internet industry, there should be:
(a) an industry code or an industry standard that deals with; or
(b) an industry code and an industry standard that together deal with;
each of the following matters:
(c) procedures directed towards the achievement of the objective of ensuring that online accounts are not provided to children without the consent of a parent or responsible adult;
(d) giving parents and responsible adults information about how to supervise and control children’s access to Internet content;
(e) procedures to be followed in order to assist parents and responsible adults to supervise and control children’s access to Internet content;
(f) procedures to be followed in order to inform producers of Internet content about their legal responsibilities in relation to that content;
(g) telling customers about their rights to make complaints under clause 22 or 23;
(h) procedures to be followed in order to assist customers to make complaints under clause 22 or 23;
(i) procedures to be followed in order to deal with complaints about unsolicited electronic mail that promotes or advertises one or more:
(i) Internet sites; or
(ii) distinct parts of Internet sites;
that enable, or purport to enable, end‑users to access information that is likely to cause offence to a reasonable adult;
(j) action to be taken to assist in the development and implementation of Internet content filtering technologies (including labelling technologies);
(k) giving customers information about the availability, use and appropriate application of Internet content filtering software;
(l) procedures directed towards the achievement of the objective of ensuring that customers have the option of subscribing to a filtered Internet carriage service;
(m) procedures directed towards the achievement of the objective of ensuring that, in the event that a participant in the relevant section of the Internet industry becomes aware that an Internet content host is hosting prohibited content in Australia, the host is told about the prohibited content.
Internet service provider section of the Internet industry
(2) The Parliament intends that, for the Internet service provider section of the Internet industry, there should be:
(a) an industry code or an industry standard that deals with; or
(b) an industry code and an industry standard that together deal with;
each of the following matters:
(c) the formulation of a designated notification scheme;
(d) procedures to be followed by Internet service providers in dealing with Internet content notified under paragraph 40(1)(b) of this Schedule or clause 46 (for example, procedures to be followed by a particular class of Internet service providers for the filtering, by technical means, of such content).
Designated alternative access‑prevention arrangements
(3) An industry code or an industry standard may provide that an Internet service provider is not required to deal with Internet content notified under paragraph 40(1)(b) of this Schedule or clause 46 by taking steps to prevent particular end‑users from accessing the content if access by the end‑users is subject to an arrangement that is declared by the code or standard to be a designated alternative access‑prevention arrangement for the purposes of the application of this clause to those end‑users.
(4) An industry code developed by a body or association must not declare that a specified arrangement is a designated alternative access‑prevention arrangement for the purposes of the application of this clause to one or more specified end‑users unless the body or association is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end‑users to prohibited content and potential prohibited content.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(5) An industry standard made by the ABA must not declare that a specified arrangement is a designated alternative access‑prevention arrangement for the purposes of the application of this clause to one or more specified end‑users unless the ABA is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end‑users to prohibited content and potential prohibited content.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(6) The following are examples of arrangements that could be declared to be designated alternative access‑prevention arrangements:
(a) an arrangement that involves the use of regularly updated Internet content filtering software;
(b) an arrangement that involves the use of a “family‑friendly” filtered Internet carriage service.
(7) For the purposes of this Schedule, if an industry code:
(a) deals to any extent with procedures to be followed by Internet service providers in dealing with Internet content notified under paragraph 40(1)(b) of this Schedule or clause 46; and
(b) makes provision as mentioned in subclause (3);
then:
(c) the code is taken to deal with the matter set out in paragraph (2)(d); and
(d) the code is taken to be consistent with subclause (2).
(8) For the purposes of this Schedule, if an industry standard:
(a) deals to any extent with procedures to be followed by Internet service providers in dealing with Internet content notified under paragraph 40(1)(b) of this Schedule or clause 46; and
(b) makes provision as mentioned in subclause (3);
then:
(c) the standard is taken to deal with the matter set out in paragraph (2)(d); and
(d) the standard is taken to be consistent with subclause (2).
Clause does not limit matters
(9) This clause does not, by implication, limit the matters that may be dealt with by industry codes and industry standards.
61 Industry codes and industry standards not to deal with certain matters
For the purposes of this Part, an industry code or an industry standard that deals with a particular matter has no effect to the extent (if any) to which the matter is dealt with by:
(a) a code registered, or a standard determined, under Part 6 of the Telecommunications Act 1997; or
(b) the Telecommunications Industry Ombudsman scheme (within the meaning of that Act).
Division 4—Industry codes
62 Registration of industry codes
(1) This clause applies if:
(a) the ABA is satisfied that a body or association represents a particular section of the Internet industry; and
(b) that body or association develops an industry code that applies to participants in that section of the industry and deals with one or more matters relating to the Internet activities of those participants; and
(c) the body or association gives a copy of the code to the ABA; and
(d) the ABA is satisfied that:
(i) to the extent to which the code deals with one or more matters of substantial relevance to the community—the code provides appropriate community safeguards for that matter or those matters; and
(ii) to the extent to which the code deals with one or more matters that are not of substantial relevance to the community—the code deals with that matter or those matters in an appropriate manner; and
(e) the ABA is satisfied that, before giving the copy of the code to the ABA:
(i) the body or association published a draft of the code and invited members of the public to make submissions to the body or association about the draft within a specified period; and
(ii) the body or association gave consideration to any submissions that were received from members of the public within that period; and
(f) the ABA is satisfied that, before giving the copy of the code to the ABA:
(i) the body or association published a draft of the code and invited participants in that section of the industry to make submissions to the body or association about the draft within a specified period; and
(ii) the body or association gave consideration to any submissions that were received from participants in that section of the industry within that period; and
(g) the ABA is satisfied that the designated body has been consulted about the development of the code; and
(h) in a case where the code relates to the Internet content host section of the Internet industry—the ABA is satisfied that the code is consistent with subclauses 59(1) and 60(1); and
(i) in a case where the code:
(i) relates to the Internet service provider section of the Internet industry; and
(ii) does not deal with a matter set out in subclause 60(2);
the code is consistent with subclauses 59(2) and 60(1); and
(j) in a case where the code:
(i) relates to the Internet service provider section of the Internet industry; and
(ii) deals with a matter set out in subclause 60(2);
the code is consistent with subclauses 59(2) and (3) and 60(2).
Note: Designated body is defined by clause 58.
(2) The ABA must register the code by including it in the Register of industry codes kept under clause 78.
(3) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must run for at least 30 days.
(4) If:
(a) an industry code (the new code) is registered under this Part; and
(b) the new code is expressed to replace another industry code;
the other code ceases to be registered under this Part when the new code is registered.
63 ABA may request codes
(1) If the ABA is satisfied that a body or association represents a particular section of the Internet industry, the ABA may, by written notice given to the body or association, request the body or association to:
(a) develop an industry code that applies to participants in that section of the industry and deals with one or more specified matters relating to the Internet activities of those participants; and
(b) give the ABA a copy of the code within the period specified in the notice.
(2) The period specified in a notice under subclause (1) must run for at least 120 days.
(3) The ABA must not make a request under subclause (1) in relation to a particular section of the Internet industry unless the ABA is satisfied that:
(a) the development of the code is necessary or convenient in order to:
(i) provide appropriate community safeguards; or
(ii) otherwise deal with the performance or conduct of participants in that section of the industry; and
(b) in the absence of the request, it is unlikely that an industry code would be developed within a reasonable period.
(4) The ABA may vary a notice under subclause (1) by extending the period specified in the notice.
(5) Subclause (4) does not, by implication, limit the application of subsection 33(3) of the Acts Interpretation Act 1901.
(6) A notice under subclause (1) may specify indicative targets for achieving progress in the development of the code (for example, a target of 60 days to develop a preliminary draft of the code).
64 Publication of notice where no body or association represents a section of the Internet industry
(1) If the ABA is satisfied that a particular section of the Internet industry is not represented by a body or association, the ABA may publish a notice in the Gazette:
(a) stating that, if such a body or association were to come into existence within a specified period, the ABA would be likely to give a notice to that body or association under subclause 63(1); and
(b) setting out the matter or matters relating to Internet activities that would be likely to be specified in the subclause 63(1) notice.
(2) The period specified in a notice under subclause (1) must run for at least 60 days.
65 Replacement of industry codes
(1) Changes to an industry code are to be achieved by replacing the code instead of varying the code.
(2) If the replacement code differs only in minor respects from the original code, clause 62 has effect, in relation to the registration of the code, as if paragraphs 62(1)(e) and (f) of this Schedule had not been enacted.
Note: Paragraphs 62(1)(e) and (f) deal with submissions about draft codes.
66 Compliance with industry codes
(1) If:
(a) a person is a participant in a particular section of the Internet industry; and
(b) the ABA is satisfied that the person has contravened, or is contravening, an industry code that:
(i) is registered under this Part; and
(ii) applies to participants in that section of the industry;
the ABA may, by written notice given to the person, direct the person to comply with the industry code.
(2) A person must comply with a direction under subclause (1).
Note: For enforcement, see Part 6 of this Schedule.
67 Formal warnings—breach of industry codes
(1) This clause applies to a person who is a participant in a particular section of the Internet industry.
(2) The ABA may issue a formal warning if the person contravenes an industry code registered under this Part.
Division 5—Industry standards
68 ABA may determine an industry standard if a request for an industry code is not complied with
(1) This clause applies if:
(a) the ABA has made a request under subclause 63(1) in relation to the development of a code that is to:
(i) apply to participants in a particular section of the Internet industry; and
(ii) deal with one or more matters relating to the Internet activities of those participants; and
(b) any of the following conditions is satisfied:
(i) the request is not complied with;
(ii) if indicative targets for achieving progress in the development of the code were specified in the notice of request—any of those indicative targets were not met;
(iii) the request is complied with, but the ABA subsequently refuses to register the code; and
(c) the ABA is satisfied that it is necessary or convenient for the ABA to determine a standard in order to:
(i) provide appropriate community safeguards in relation to that matter or those matters; or
(ii) otherwise regulate adequately participants in that section of the industry in relation to that matter or those matters.
(2) The ABA may, by written instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subclause is to be known as an industry standard.
(3) Before determining an industry standard under this clause, the ABA must consult the body or association to whom the request mentioned in paragraph (1)(a) was made.
(4) A standard under subclause (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(5) The Minister may give the ABA a written direction as to the exercise of its powers under this clause.
69 ABA may determine industry standard where no industry body or association formed
(1) This clause applies if:
(a) the ABA is satisfied that a particular section of the Internet industry is not represented by a body or association; and
(b) the ABA has published a notice under subclause 64(1) relating to that section of the industry; and
(c) that notice:
(i) states that, if such a body or association were to come into existence within a particular period, the ABA would be likely to give a notice to that body or association under subclause 63(1); and
(ii) sets out one or more matters relating to the Internet activities of the participants in that section of the industry; and
(d) no such body or association comes into existence within that period; and
(e) the ABA is satisfied that it is necessary or convenient for the ABA to determine a standard in order to:
(i) provide appropriate community safeguards in relation to that matter or those matters; or
(ii) otherwise regulate adequately participants in that section of the industry in relation to that matter or those matters.
(2) The ABA may, by written instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subclause is to be known as an industry standard.
(3) A standard under subclause (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(4) The Minister may give the ABA a written direction as to the exercise of its powers under this clause.
70 ABA may determine industry standards—total failure of industry codes
(1) This clause applies if:
(a) an industry code that:
(i) applies to participants in a particular section of the Internet industry; and
(ii) deals with one or more matters relating to the Internet activities of those participants;
has been registered under this Part for at least 180 days; and
(b) the ABA is satisfied that the code is totally deficient (as defined by subclause (7)); and
(c) the ABA has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period; and
(d) that period ends and the ABA is satisfied that it is necessary or convenient for the ABA to determine a standard that applies to participants in that section of the industry and deals with that matter or those matters.
(2) The period specified in a notice under paragraph (1)(c) must run for at least 30 days.
(3) The ABA may, by written instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subclause is to be known as an industry standard.
(4) If the ABA is satisfied that a body or association represents that section of the industry, the ABA must consult the body or association before determining an industry standard under subclause (3).
(5) A standard under subclause (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(6) The industry code ceases to be registered under this Part on the day on which the industry standard comes into force.
(7) For the purposes of this clause, an industry code that applies to participants in a particular section of the Internet industry and deals with one or more matters relating to the Internet activities of those participants is totally deficient if, and only if:
(a) the code is not operating to provide appropriate community safeguards in relation to that matter or those matters; or
(b) the code is not otherwise operating to regulate adequately participants in that section of the industry in relation to that matter or those matters.
(8) The Minister may give the ABA a written direction as to the exercise of its powers under this clause.
71 ABA may determine industry standards—partial failure of industry codes
(1) This clause applies if:
(a) an industry code that:
(i) applies to participants in a particular section of the Internet industry; and
(ii) deals with 2 or more matters relating to the Internet activities of those participants;
has been registered under this Part for at least 180 days; and
(b) clause 70 does not apply to the code; and
(c) the ABA is satisfied that the code is deficient (as defined by subclause (7)) to the extent to which the code deals with one or more of those matters (the deficient matter or deficient matters); and
(d) the ABA has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period; and
(e) that period ends and the ABA is satisfied that it is necessary or convenient for the ABA to determine a standard that applies to participants in that section of the industry and deals with the deficient matter or deficient matters.
(2) The period specified in a notice under paragraph (1)(c) must run for at least 30 days.
(3) The ABA may, by written instrument, determine a standard that applies to participants in that section of the industry and deals with the deficient matter or deficient matters. A standard under this subclause is to be known as an industry standard.
(4) If the ABA is satisfied that a body or association represents that section of the industry, the ABA must consult the body or association before determining an industry standard under subclause (3).
(5) A standard under subclause (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(6) On and after the day on which the industry standard comes into force, the industry code has no effect to the extent to which it deals with the deficient matter or deficient matters. However, this subclause does not affect:
(a) the continuing registration of the remainder of the industry code; or
(b) any investigation, proceeding or remedy in respect of a contravention of the industry code or clause 66 that occurred before that day.
(7) For the purposes of this clause, an industry code that applies to participants in a particular section of the Internet industry and deals with 2 or more matters relating to the Internet activities of those participants is deficient to the extent to which it deals with a particular one of those matters if, and only if:
(a) the code is not operating to provide appropriate community safeguards in relation to that matter; or
(b) the code is not otherwise operating to regulate adequately participants in that section of the industry in relation to that matter.
(8) The Minister may give the ABA a written direction as to the exercise of its powers under this clause.
72 Compliance with industry standards
If:
(a) an industry standard that applies to participants in a particular section of the Internet industry is registered under this Part; and
(b) a person is a participant in that section of the Internet industry;
the person must comply with the industry standard.
Note: For enforcement, see Part 6 of this Schedule.
73 Formal warnings—breach of industry standards
(1) This clause applies to a person who is a participant in a particular section of the Internet industry.
(2) The ABA may issue a formal warning if the person contravenes an industry standard registered under this Part.
74 Variation of industry standards
(1) The ABA may, by written instrument, vary an industry standard that applies to participants in a particular section of the Internet industry if it is satisfied that it is necessary or convenient to do so to:
(a) provide appropriate community safeguards in relation to one or more matters relating to the Internet activities of those participants; and
(b) otherwise regulate adequately those participants in relation to one or more matters relating to the Internet activities of those participants.
(2) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
75 Revocation of industry standards
(1) The ABA may, by written instrument, revoke an industry standard.
(2) If:
(a) an industry code is registered under this Part; and
(b) the code is expressed to replace an industry standard;
the industry standard is revoked when the code is registered.
(3) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
76 Public consultation on industry standards
(1) Before determining or varying an industry standard, the ABA must:
(a) cause to be published in a newspaper circulating in each State a notice:
(i) stating that the ABA has prepared a draft of the industry standard or variation; and
(ii) stating that free copies of the draft will be made available to members of the public during normal office hours throughout the period specified in the notice; and
(iii) specifying the place or places where the copies will be available; and
(iv) inviting interested persons to give written comments about the draft to the ABA within the period specified under subparagraph (ii); and
(b) make copies of the draft available in accordance with the notice.
(2) The period specified under subparagraph (1)(a)(ii) must run for at least 30 days after the publication of the notice.
(3) Subclause (1) does not apply to a variation if the variation is of a minor nature.
(4) If interested persons have given comments in accordance with a notice under subclause (1), the ABA must have due regard to those comments in determining or varying the industry standard, as the case may be.
(5) In this clause:
State includes the Northern Territory and the Australian Capital Territory.
77 Consultation with designated body
(1) Before determining or varying an industry standard, the ABA must consult the designated body.
(2) Before revoking an industry standard under subclause 75(1), the ABA must consult the designated body.
Note: Designated body is defined by clause 58.
Division 6—Register of industry codes and industry standards
78 ABA to maintain Register of industry codes and industry standards
(1) The ABA is to maintain a Register in which the ABA includes:
(a) all industry codes required to be registered under this Part; and
(b) all industry standards; and
(c) all requests made under clause 63; and
(d) all notices under clause 64; and
(e) all directions under clause 66.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the Internet.
Part 6—Online provider rules
79 Online provider rules
For the purposes of this Schedule, each of the following is an online provider rule:
(a) the rule set out in subclause 37(1);
(b) the rule set out in subclause 37(2);
(c) the rule set out in subclause 37(3);
(d) the rule set out in subclause 37(4);
(e) the rule set out in subclause 48(1);
(f) the rule set out in subclause 48(2);
(g) the rule set out in subclause 66(2);
(h) the rule set out in clause 72;
(i) each of the rules (if any) set out in an online provider determination in force under clause 80.
80 Online provider determinations
(1) The ABA may make a written determination setting out rules that apply to Internet service providers in relation to the supply of Internet carriage services.
(2) The ABA may make a written determination setting out rules that apply to Internet content hosts in relation to the hosting of Internet content in Australia.
(3) A determination under subclause (1) or (2) is called an online provider determination.
(4) An online provider determination has effect only to the extent that:
(a) it is authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution); or
(b) both:
(i) it is authorised by section 122 of the Constitution; and
(ii) it would have been authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution) if section 51 of the Constitution extended to the Territories.
(5) The ABA must not make an online provider determination unless the determination relates to a matter specified in the regulations.
(6) The ABA must not make an online provider determination if the determination relates to a matter specified in regulations in force for the purposes of subsection 99(3) of the Telecommunications Act 1997.
(7) An online provider determination may make provision for or in relation to a particular matter by empowering the ABA to make decisions of an administrative character.
(8) An online provider determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
81 Exemptions from online provider determinations
(1) The Minister may, by written instrument, determine that a specified Internet service provider, or a specified Internet content host, is exempt from online provider determinations.
(2) The Minister may, by written instrument, determine that a specified Internet service provider, or a specified Internet content host, is exempt from a specified online provider determination.
(3) A determination under this clause may be unconditional or subject to such conditions (if any) as are specified in the determination.
(4) A determination under this clause has effect accordingly.
(5) A determination under this clause is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
82 Compliance with online provider rules
(1) A person is guilty of an offence if:
(a) an online provider rule is applicable to the person; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the rule.
Penalty: 50 penalty units.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this clause.
(2) In this clause:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
83 Remedial directions—breach of online provider rules
(1) This clause applies if an Internet service provider, or an Internet content host, has contravened, or is contravening, an online provider rule.
(2) The ABA may give the provider or host a written direction requiring the provider or host to take specified action directed towards ensuring that the provider or host does not contravene the rule, or is unlikely to contravene the rule, in the future.
(3) The following are examples of the kinds of direction that may be given to an Internet service provider, or an Internet content host, under subclause (2):
(a) a direction that the provider or host implement effective administrative systems for monitoring compliance with an online provider rule;
(b) a direction that the provider or host implement a system designed to give the provider’s or host’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of an online provider rule, in so far as those requirements affect the employees, agents or contractors concerned.
(4) A person is guilty of an offence if:
(a) the person is subject to a direction under subclause (2); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the direction.
Penalty: 50 penalty units.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subclause.
(5) In this clause:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
84 Formal warnings—breach of online provider rules
The ABA may issue a formal warning if a person contravenes an online provider rule.
85 Federal Court may order a person to cease supplying Internet carriage services or cease hosting Internet content
(1) If the ABA is satisfied that:
(a) a person who is an Internet service provider is supplying an Internet carriage service otherwise than in accordance with an online provider rule; or
(b) a person who is an Internet content host is hosting Internet content in Australia otherwise than in accordance with an online provider rule;
the ABA may apply to the Federal Court for an order that the person cease supplying that Internet carriage service or cease hosting that Internet content in Australia, as the case requires.
(2) If the Federal Court is satisfied, on such an application, that the person is:
(a) supplying an Internet carriage service otherwise than in accordance with the online provider rule; or
(b) hosting Internet content in Australia otherwise than in accordance with the online provider rule;
the Federal Court may order the person to cease supplying that Internet carriage service or cease hosting that Internet content in Australia, as the case requires.
Part 7—Offences
86 Continuing offences
A person who contravenes clause 82 or subclause 83(4) is guilty of a separate offence in respect of each day (including the day of a conviction for the offence or any later day) during which the contravention continues.
87 Conduct by directors, employees and agents
Body corporate
(1) If, in proceedings for an ancillary offence relating to this Schedule, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the director, employee or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for:
(a) an offence against this Schedule; or
(b) an ancillary offence relating this Schedule;
to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
Person other than a body corporate
(3) If, in proceedings for an ancillary offence relating to this Schedule, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and
(b) that the employee or agent had the state of mind.
(4) Any conduct engaged in on behalf of a person other than a body corporate by an employee or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for:
(a) an offence against this Schedule; or
(b) an ancillary offence relating this Schedule;
to have been engaged in also by the first‑mentioned person unless the first‑mentioned person establishes that the first‑mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.
(5) If:
(a) a person other than a body corporate is convicted of an offence; and
(b) the person would not have been convicted of the offence if subclauses (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that offence.
State of mind
(6) A reference in subclause (1) or (3) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Director
(7) A reference in this clause to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.
Engaging in conduct
(8) A reference in this clause to engaging in conduct includes a reference to failing or refusing to engage in conduct.
Ancillary offence relating to this Schedule
(9) A reference in this clause to an ancillary offence relating to this Schedule is a reference to an offence created by section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code that relates to this Schedule.
Part 8—Protection from civil and criminal proceedings
88 Protection from civil proceedings—Internet service providers and Internet content hosts
Internet service provider
(1) Civil proceedings do not lie against an Internet service provider in respect of anything done by the provider in compliance with:
(a) a code registered under Part 5 of this Schedule; or
(b) a standard determined under Part 5 of this Schedule;
in so far as the code or standard deals with procedures referred to in paragraph 60(2)(d) of this Schedule.
(2) Civil proceedings do not lie against an Internet service provider in respect of anything done by the provider in compliance with clause 48.
Internet content host
(3) Civil proceedings do not lie against an Internet content host in respect of anything done by the host in compliance with clause 37.
89 Protection from criminal proceedings—ABA, Classification Board and Classification Review Board
(1) For the purposes of this clause, each of the following is a protected person:
(a) the ABA;
(b) a member or associate member of the ABA;
(c) a member of the staff of the ABA;
(d) a consultant engaged to assist in the performance of the ABA’s functions;
(e) an officer whose services are made available to the ABA under subsection 165(3);
(f) a member or temporary member of the Classification Board;
(g) a member of the staff of the Classification Board;
(h) a consultant engaged to assist in the performance of the Classification Board’s functions;
(i) an officer whose services are made available to the Classification Board under subsection 54(3) of the Classification (Publications, Films and Computer Games) Act 1995;
(j) a member of the Classification Review Board.
(2) Criminal proceedings do not lie against a protected person for or in relation to:
(a) the collection of information or material; or
(b) the possession of information or material; or
(c) the distribution of information or material; or
(d) the delivery of information or material; or
(e) the copying of information or material; or
(f) the doing of any other thing in relation to information or material;
in connection with the exercise of a power, or the performance of a function, conferred on the ABA, the Classification Board or the Classification Review Board by this Schedule.
Definition
(3) In this clause:
possession includes have in custody or control.
Part 9—Operation of State and Territory laws etc.
90 Concurrent operation of State and Territory laws
It is the intention of the Parliament that this Schedule is not to apply to the exclusion of a law of a State or Territory to the extent to which that law is capable of operating concurrently with this Schedule.
91 Liability of Internet content hosts and Internet service providers under State and Territory laws etc.
(1) A law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:
(a) subjects, or would have the effect (whether direct or indirect) of subjecting, an Internet content host to liability (whether criminal or civil) in respect of hosting particular Internet content in a case where the host was not aware of the nature of the Internet content; or
(b) requires, or would have the effect (whether direct or indirect) of requiring, an Internet content host to monitor, make inquiries about, or keep records of, Internet content hosted by the host; or
(c) subjects, or would have the effect (whether direct or indirect) of subjecting, an Internet service provider to liability (whether criminal or civil) in respect of carrying particular Internet content in a case where the service provider was not aware of the nature of the Internet content; or
(d) requires, or would have the effect (whether direct or indirect) of requiring, an Internet service provider to monitor, make inquiries about, or keep records of, Internet content carried by the provider.
(2) The Minister may, by written instrument, exempt a specified law of a State or Territory, or a specified rule of common law or equity, from the operation of subclause (1).
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(3) An exemption under subclause (2) may be unconditional or subject to such conditions (if any) as are specified in the exemption.
Declaration by Minister
(4) The Minister may, by written instrument, declare that a specified law of a State or Territory, or a specified rule of common law or equity, has no effect to the extent to which the law or rule has a specified effect in relation to an Internet content host.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(5) The Minister may, by written instrument, declare that a specified law of a State or Territory, or a specified rule of common law or equity, has no effect to the extent to which the law or rule has a specified effect in relation to an Internet service provider.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(6) A declaration under subclause (4) or (5) has effect only to the extent that:
(a) it is authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution); or
(b) both:
(i) it is authorised by section 122 of the Constitution; and
(ii) it would have been authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution) if section 51 of the Constitution extended to the Territories.
(7) An instrument under subclause (2), (4) or (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Part 10—Review of decisions
92 Review by the AAT
(1) An application may be made to the AAT for a review of any of the following decisions made by the ABA:
(a) a decision to give an Internet content host an interim take‑down notice;
(b) a decision to give an Internet content host a final take‑down notice;
(c) a decision to give an Internet content host a special take‑down notice;
(d) a decision under paragraph 30(2)(b) of this Schedule to request the Classification Board to classify Internet content hosted in Australia by an Internet content host;
(e) a decision to give an Internet service provider a standard access‑prevention notice;
(f) a decision to give an Internet service provider a special access‑prevention notice;
(g) a decision under clause 66 or 83 to:
(i) give a direction to an Internet service provider or an Internet content host; or
(ii) vary a direction that is applicable to an Internet service provider or an Internet content host; or
(iii) refuse to revoke a direction that is applicable to an Internet service provider or an Internet content host;
(h) a decision of a kind referred to in subclause 80(7) (which deals with decisions under online provider determinations), where the decision relates to an Internet service provider or an Internet content host.
(2) An application under subclause (1) may only be made by the Internet content host or Internet service provider concerned.
(3) An application may be made to the AAT for a review of a decision of the ABA under clause 62 to refuse to register a code.
(4) An application under subclause (3) may only be made by the body or association that developed the code.
93 Notification of decisions to include notification of reasons and appeal rights
If the ABA makes a decision that is reviewable under clause 92, 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 AAT for a review of the decision.
Part 11—Miscellaneous
94 Additional ABA functions
The ABA has the following functions:
(a) to monitor compliance with codes and standards registered under Part 5 of this Schedule;
(b) to advise and assist parents and responsible adults in relation to the supervision and control of children’s access to Internet content;
(c) to conduct and/or co‑ordinate community education programs about Internet content and Internet carriage services, in consultation with relevant industry and consumer groups and government agencies;
(d) to conduct and/or commission research into issues relating to Internet content and Internet carriage services;
(e) to liaise with regulatory and other relevant bodies overseas about co‑operative arrangements for the regulation of the Internet industry, including (but not limited to) collaborative arrangements to develop:
(i) multilateral codes of practice; and
(ii) Internet content labelling technologies;
(f) to inform itself and advise the Minister on technological developments and service trends in the Internet industry.
95 Review before 1 January 2003
(1) Before 1 January 2003, the Minister must cause to be conducted a review of the operation of this Schedule.
(2) The following matters are to be taken into account in conducting a review under subclause (1):
(a) the general development of Internet content filtering technologies;
(b) whether Internet content filtering technologies have developed to a point where it is practicable to use those technologies to prevent end‑users from accessing R‑rated information hosted outside Australia that is not subject to a restricted access system;
(c) any other relevant matters.
(3) The Minister must cause to be prepared a report of a review under subclause (1).
(4) The Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.
(5) The Parliament acknowledges the Government’s policy intention that, in the event that Internet content filtering technologies develop to a point where it is practicable to use those technologies to prevent end‑users from accessing R‑rated information hosted outside Australia that is not subject to a restricted access system, legislation will be introduced into the Parliament to:
(a) extend subclause 10(1) to Internet content hosted outside Australia; and
(b) repeal subclause 10(2).
96 Schedule not to affect performance of State or Territory functions
A power conferred by this Schedule must not be exercised in such a way as to prevent the exercise of the powers, or the performance of the functions, of government of a State, the Northern Territory, the Australian Capital Territory or Norfolk Island.
Schedule 6—Datacasting services
Note: See section 216C.
Part 1—Introduction
1 Simplified outline
The following is a simplified outline of this Schedule:
• This Schedule sets up a system for regulating the provision of datacasting services.
• Datacasting service providers must hold datacasting licences.
• Datacasting content will be subject to restrictions. Those restrictions are designed to encourage datacasting licensees to provide a range of innovative services that are different to traditional broadcasting services.
• The main restrictions on datacasting content are as follows:
(a) restrictions on the provision of certain genres of television programs;
(b) restrictions on the provision of audio content.
• Datacasting licensees will be allowed to provide the following types of content:
(a) information‑only programs (including matter that enables people to carry out transactions);
(b) educational programs;
(c) interactive computer games;
(d) content in the form of text or still visual images;
(e) Parliamentary broadcasts;
(f) ordinary electronic mail;
(g) Internet content.
• A group that represents datacasting licensees may develop codes of practice.
• The ABA has a reserve power to make a standard if there are no codes of practice or if a code of practice is deficient.
• The ABA is to investigate complaints about datacasting licensees.
2 Definitions
(1) In this Schedule, unless the contrary intention appears:
advertising or sponsorship material means advertising or sponsorship material (whether or not of a commercial kind).
Classification Board means the Classification Board established by the Classification (Publications, Films and Computer Games) Act 1995.
compilation program means a program that consists of video clips or other matter edited together to form a structured program, where there is a heavy emphasis on entertainment value.
declared Internet carriage service has the meaning given by clause 23B.
drama program has the same meaning as in section 103B.
educational program has the meaning given by clause 3.
engage in conduct (except in clause 55 or 56) means:
(a) do an act; or
(b) omit to perform an act.
financial, market or business information bulletin means a bulletin the sole or dominant purpose of which is to provide information, analysis, commentary or discussion in relation to financial, market or business matters.
foreign‑language news or current affairs program has the meaning given by clause 5.
information‑only program has the meaning given by clause 4.
infotainment or lifestyle program means a program the sole or dominant purpose of which is to present factual information in an entertaining way, where there is a heavy emphasis on entertainment value.
interactive computer game means a computer game, where:
(a) the way the game proceeds, and the result achieved at various stages of the game, is determined in response to the decisions, inputs and direct involvement of the player; and
(b) a part of the software that enables end‑users to play the game is under the control of the datacasting licensee concerned.
Internet carriage service has the same meaning as in Schedule 5, but does not include a service that transmits content that has been copied from the Internet, where the content is selected by the datacasting licensee concerned.
music program means a program the sole or dominant purpose of which is to provide:
(a) music with video clips; or
(b) video footage of musical performances;
or both.
news or current affairs program means any of the following:
(a) a news bulletin;
(b) a sports news bulletin;
(c) a program (whether presenter‑based or not) whose sole or dominant purpose is to provide analysis, commentary or discussion principally designed to inform the general community about social, economic or political issues of current relevance to the general community.
nominated datacaster declaration means a declaration under clause 45.
ordinary electronic mail does not include a posting to a newsgroup.
qualified entity means:
(a) a company that:
(i) is formed in Australia or in an external Territory; and
(ii) has a share capital; or
(b) the Commonwealth, a State or a Territory; or
(c) the Australian Broadcasting Corporation; or
(d) the Special Broadcasting Service Corporation; or
(e) any other body corporate established for a public purpose by a law of the Commonwealth or of a State or Territory.
“reality television” program means a program the sole or dominant purpose of which is to depict actual, contemporary events, people or situations in a dramatic or entertaining way, where there is a heavy emphasis on dramatic impact or entertainment value.
related body corporate has the same meaning as in the Corporations Act 2001.
sports program means a program the sole or dominant purpose of which is to provide:
(a) coverage of one or more sporting events; or
(b) analysis, commentary or discussion in relation to one or more sporting events;
or both, but does not include a sports news bulletin.
transmitter licence has the same meaning as in the Radiocommunications Act 1992.
(2) In determining the meaning of an expression used in a provision of this Act (other than this Schedule), this clause is to be disregarded.
3 Educational programs
(1) For the purposes of this Schedule, an educational program is matter, where, having regard to:
(a) the substance of the matter; and
(b) the way in which the matter is advertised or promoted; and
(c) any other relevant matters;
it would be concluded that the sole or dominant purpose of the matter is to assist a person in education or learning, whether or not in connection with a course of study or instruction.
(2) Subclause (1) has effect subject to subclauses (3) and (4).
ABA determinations
(3) The ABA may make a written determination providing that, for the purposes of this Schedule, specified matter is taken to be an educational program.
(4) The ABA may make a written determination providing that, for the purposes of this Schedule, specified matter is taken not to be an educational program.
(5) A determination under subclause (3) or (4) has effect accordingly.
(6) A determination under subclause (3) or (4) is to be an instrument of a legislative character.
(7) A determination under subclause (3) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
4 Information‑only programs
(1) For the purposes of this Schedule, an information‑only program is matter the sole or dominant purpose of which is to:
(a) provide factual information, or directly‑related comment, about any of a wide range of matters, including but not limited to any of the following:
(i) products;
(ii) services;
(iii) community activities;
(iv) domestic or household matters;
(v) private recreational pursuits or hobbies;
(vi) legal rights, obligations or responsibilities;
(vii) first aid, health or safety matters;
(viii) emergencies or natural disasters;
(ix) rural matters;
(x) travel matters;
(xi) crime prevention matters; or
(b) enable and/or facilitate the carrying out and/or completion of transactions;
or both, where there is not a significant emphasis on dramatic impact or entertainment.
(2) Subclause (1) has effect subject to subclauses (3) and (4).
ABA determinations
(3) The ABA may make a written determination providing that, for the purposes of this Schedule, specified matter is taken to be an information‑only program.
(4) The ABA may make a written determination providing that, for the purposes of this Schedule, specified matter is taken not to be an information‑only program.
(5) A determination under subclause (3) or (4) has effect accordingly.
(6) A determination under subclause (3) or (4) is to be an instrument of a legislative character.
(7) A determination under subclause (3) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Definitions
(8) In this clause:
community activity means:
(a) a meeting, event, performance or other activity that can be attended by:
(i) the public; or
(ii) a section of the public; or
(iii) members of a particular club, society or organisation; or
(b) the activity of visiting an institution, a tourist attraction or other place;
whether on payment of a charge or otherwise.
product includes real property.
services means any services, benefits, rights, privileges or facilities that are capable of being provided, granted or conferred:
(a) in trade or commerce; or
(b) by a government or government authority; or
(c) in any other way.
transactions includes:
(a) commercial transactions; and
(b) banking transactions; and
(c) insurance transactions; and
(d) dealings about employment matters; and
(e) dealings with governments and government authorities.
5 Foreign‑language news or current affairs programs
(1) For the purposes of this Schedule, a foreign‑language news or current affairs program means a news or current affairs program that is wholly in a language other than English.
(2) For the purposes of subclause (1), disregard minor and infrequent uses of the English language.
(3) For the purposes of subclause (1), disregard any English language subtitles or captioning.
6 Datacasting content is taken not to be a television program or a radio program etc.
For the purposes of this Act (other than Divisions 1 and 2 of Part 3 of this Schedule) and any other law of the Commonwealth (other than the Tobacco Advertising Prohibition Act 1992), if a datacasting service is provided under, and in accordance with the conditions of, a datacasting licence:
(a) any matter provided on that service is taken not to be a television program or a radio program; and
(b) any matter provided on that service is taken not to be broadcast or televised; and
(c) that service is taken not to be a broadcasting service, a television service or a radio service.
Part 2—Datacasting licences
7 Allocation of datacasting licence
(1) The ABA may allocate a datacasting licence to a person, on written application by the person.
(2) Applications must:
(a) be in accordance with a form approved in writing by the ABA; and
(b) be accompanied by the application fee determined in writing by the ABA.
8 When datacasting licence must not be allocated
(1) A datacasting licence is not to be allocated to an applicant if:
(a) the applicant is not a qualified entity; or
(b) the ABA decides that subclause 9(1) applies to the applicant.
(2) The ABA may refuse to allocate a datacasting licence to an applicant if a datacasting licence held by the applicant, or by a related body corporate of the applicant, was cancelled at any time during the previous 12 months.
(3) Paragraph (1)(b) does not require the ABA to consider the application of clause 9 in relation to an applicant before allocating a licence to the applicant.
9 Unsuitable applicant
(1) The ABA may, if it is satisfied that allowing a particular person to provide a datacasting service under a datacasting licence would lead to a significant risk of:
(a) an offence against this Act or the regulations being committed; or
(b) a breach of the conditions of the licence occurring;
decide that this subclause applies to the person.
(2) In deciding whether such a risk exists, the ABA is to take into account:
(a) the business record of the person; and
(b) the person’s record in situations requiring trust and candour; and
(c) the business record of each person who would be, if a datacasting licence were allocated to the first‑mentioned person, in a position to control the licence; and
(d) the record in situations requiring trust and candour of each such person; and
(e) whether the first‑mentioned person, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations.
(3) This clause does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
10 Transfer of datacasting licences
(1) A datacasting licensee may transfer the licence to another qualified entity.
(2) A transferee of a datacasting licence must, within 7 days after the transfer, notify the ABA of the transfer.
Penalty: 50 penalty units.
(2A) Subclause (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A notification must be in accordance with a form approved in writing by the ABA.
11 Surrender of datacasting licences
A datacasting licensee may, by written notice given to the ABA, surrender the licence.
12 ABA to maintain Register of datacasting licences
(1) The ABA is to maintain a Register in which the ABA includes:
(a) particulars of datacasting licences; and
(b) such information about transmitter licences as the ABA determines.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the Internet.
Part 3—Conditions of datacasting licences
Division 1—Genre conditions
13 Category A television programs
(1) For the purposes of this Division, each of the following television programs is a category A television program:
(a) a drama program;
(c) a sports program;
(d) a music program;
(e) an infotainment or lifestyle program;
(f) a documentary program;
(g) a “reality television” program;
(h) a children’s entertainment program;
(i) a light entertainment or variety program;
(j) a compilation program;
(k) a quiz or games program;
(l) a comedy program;
(m) a program that consists of a combination of any or all of the above programs.
(2) Subclause (1) has effect subject to subclauses (3), (4) and (5).
(3) For the purposes of this Division, neither of the following television programs is a category A television program:
(a) an information‑only program;
(b) an educational program.
ABA genre determinations
(4) The ABA may make a written determination providing that, for the purposes of this Division, a specified television program or specified matter is taken to be a category A television program covered by a specified paragraph of subclause (1).
(5) The ABA may make a written determination providing that, for the purposes of this Division, a specified television program or specified matter is taken not to be a category A television program covered by a specified paragraph of subclause (1).
(6) A determination under subclause (4) or (5) has effect accordingly.
(7) A determination under subclause (4) or (5) is to be an instrument of a legislative character.
(8) A determination under subclause (4) or (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
14 Condition relating to category A television programs
(1) Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial television broadcasting service, would be:
(a) a category A television program; or
(b) an extract from a category A television program.
(2) The condition set out in subclause (1) does not prevent the licensee from transmitting an extract from a category A television program, so long as:
(a) the extract is not longer than 10 minutes; and
(c) the extract is not combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program; and
(d) having regard to:
(i) the nature of the extract; and
(ii) the circumstances in which the extract is provided;
it would be concluded that the licensee did not intend that the extract be combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program.
(3) A reference in subclause (2) to a category A television program is a reference to matter that is covered by subclause (1) because of paragraph (1)(a).
(4) A reference in subclause (2) to an extract from a category A television program is a reference to matter that is covered by subclause (1) because of paragraph (1)(b).
(5) If, because of subclause (2) of this clause, a datacasting licensee can transmit matter without breaching the condition set out in subclause (1) of this clause, the condition set out in subclause 16(1) does not prevent the licensee from transmitting that matter.
15 Category B television programs
(1) For the purposes of this Division, each of the following television programs is a category B television program:
(a) a news or current affairs program;
(b) a financial, market or business information bulletin;
(c) a weather bulletin;
(d) a bulletin or program that consists of a combination of any or all of the above bulletins or programs.
(2) Subclause (1) has effect subject to subclauses (3), (4) and (5).
(3) For the purposes of this Division, none of the following television programs is a category B television program:
(a) an information‑only program;
(b) an educational program;
(c) a foreign‑language news or current affairs program.
ABA genre determinations
(4) The ABA may make a written determination providing that, for the purposes of this Division, a specified television program or specified matter is taken to be a category B television program covered by a specified paragraph of subclause (1).
(5) The ABA may make a written determination providing that, for the purposes of this Division, a specified television program or specified matter is taken not to be a category B television program covered by a specified paragraph of subclause (1).
(6) A determination under subclause (4) or (5) has effect accordingly.
(7) A determination under subclause (4) or (5) is to be an instrument of a legislative character.
(8) A determination under subclause (4) or (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
16 Condition relating to category B television programs
(1) Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial television broadcasting service, would be:
(a) a category B television program; or
(b) an extract from a category B television program.
(2) The condition set out in subclause (1) does not prevent the licensee from transmitting a bulletin, or program, (whether presenter‑based or not), so long as:
(a) the bulletin or program is not longer than 10 minutes; and
(b) if:
(i) an earlier bulletin or program covered by subclause (1) was transmitted by the licensee; and
(ii) the content of the first‑mentioned bulletin or program differs in any respect from the content of the earlier bulletin or program;
the interval between the start of the transmission of the earlier bulletin or program and the start of the transmission of the first‑mentioned bulletin or program is at least 30 minutes; and
(c) the bulletin or program is not combined with one or more other bulletins or programs in such a way that the bulletins or programs together constitute a bulletin or program longer than 10 minutes; and
(d) having regard to:
(i) the nature of the bulletin or program; and
(ii) the circumstances in which the bulletin or program is provided;
it would be concluded that the licensee did not intend that the bulletin or program be combined with one or more other bulletins or programs in such a way that the bulletins or programs together constitute a bulletin or program longer than 10 minutes.
(3) The condition set out in subclause (1) does not prevent the licensee from transmitting a bulletin or program, so long as:
(a) the bulletin or program is not a presenter‑based bulletin or program; and
(b) one of the following applies:
(i) the bulletin or program consists of a single item of news (including a single item of sports news);
(ii) the bulletin or program is a financial, market or business information bulletin or program that deals with a single topic;
(iia) the bulletin or program is a compilation of items, the subject of which is the same or directly related, and is not longer than 10 minutes;
(iii) the bulletin or program is a weather bulletin or program; and
(c) the bulletin or program can only be accessed by an end‑user who makes a selection from an on‑screen menu.
(4) In this clause:
presenter‑based bulletin or program means a bulletin or program that consists of, or includes, a combination of:
(a) introductory or closing segments, or both, spoken by a host, or an anchor presenter, who is visible on the screen; and
(b) video images (whether or not with accompanying sound).
(5) If, because of subclause (2) or (3) of this clause, a datacasting licensee can transmit matter without breaching the condition set out in subclause (1) of this clause, the condition set out in subclause 14(1) does not prevent the licensee from transmitting that matter.
17 Genre conditions do not apply to Parliamentary proceedings etc.
The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from transmitting live matter that consists of:
(a) the proceedings of, or the proceedings of a committee of, a Parliament; or
(b) the proceedings of a court or tribunal in Australia; or
(c) the proceedings of an official inquiry or Royal Commission in Australia; or
(d) a hearing conducted by a body established for a public purpose by a law of the Commonwealth or of a State or Territory.
18 Genre conditions do not apply to matter that consists of no more than text or still visual images etc.
(1) The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from transmitting matter that consists of no more than:
(a) text; or
(b) text accompanied by associated sounds; or
(c) still visual images; or
(d) still visual images accompanied by associated sounds; or
(e) any combination of matter covered by the above paragraphs; or
(f) any combination of:
(i) matter that is covered by any of the above paragraphs (the basic matter); and
(ii) animated images (with or without associated sounds);
where:
(iii) having regard to the substance of the animated images, it would be concluded that the animated images are ancillary or incidental to the basic matter; or
(iv) the animated images consist of advertising or sponsorship material.
(2) In determining the meaning of the expressions television or television program, when used in a provision of this Act, subclause (1) is to be disregarded.
18A Genre conditions do not apply to advertising or sponsorship material
The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from transmitting advertising or sponsorship material.
19 Genre conditions do not apply to interactive computer games
(1) The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from providing an interactive computer game.
(2) In determining the meaning of the expressions television or television program, when used in a provision of this Act, subclause (1) is to be disregarded.
20 Genre conditions do not apply to Internet carriage services or ordinary electronic mail
(1) The conditions set out in clauses 14 and 16 do not apply to:
(a) the transmission of so much of a datacasting service as consists of an Internet carriage service (other than a declared Internet carriage service); or
(b) the transmission of ordinary electronic mail.
(2) In determining the meaning of the expressions television or television program, when used in a provision of this Act, subclause (1) is to be disregarded.
20AA Genre conditions do not apply to certain content copied from the Internet
(1) The conditions set out in clauses 14 and 16 do not apply to the transmission of matter if:
(a) the matter is content that has been copied from the Internet; and
(b) the content is selected by the datacasting licensee concerned; and
(c) there is in force an exemption order under subclause 27A(1) in relation to the transmission of the matter.
(2) In determining the meaning of the expressions television or television program, when used in a provision of this Act, subclause (1) is to be disregarded.
Division 1A—Electronic program guide condition
20A Electronic program guides
For the purposes of this Division, an electronic program guide is matter transmitted using a digital modulation technique, where the matter consists of no more than:
(a) a schedule of programs provided by a broadcasting service or a datacasting service; or
(b) a schedule covered by paragraph (a) and either or both of the following:
(i) items of factual information, and/or items of comment, about some or all of the program in the schedule, where each item is brief and in the form of text;
(ii) a facility, the sole purpose of which is to enable an end‑user to select, and commence viewing, one or more of the programs in the schedule.
20B Condition relating to electronic program guides
(1) Each datacasting licence is subject to the condition that the licensee will not transmit an electronic program guide except in accordance with the following rules:
(a) a licensee may transmit an electronic program guide containing information about the programs transmitted by the licensee;
(b) if a licensee transmits an electronic program guide containing information about any programs transmitted by a commercial television broadcasting service or a national television broadcasting service, the licensee must transmit equivalent information about programs transmitted by itself and by each other commercial television broadcasting service or a national television broadcasting service.
(2) Subclause (1) does not require a datacasting licensee to transmit information about programs transmitted by a commercial television broadcasting service unless the commercial television broadcasting licensee concerned has requested the datacasting licensee to transmit that information.
(3) Subclause (1) does not require a datacasting licensee to transmit information about programs transmitted by a national television broadcasting service unless the national broadcaster concerned has requested the datacasting licensee to transmit that information.
Division 2—Audio content condition
21 Audio content condition
(1) Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial radio broadcasting service, would be a designated radio program.
Designated radio program
(2) For the purposes of this clause, a designated radio program is a radio program other than:
(a) an information‑only program; or
(b) an educational program; or
(c) a foreign‑language news or current affairs program.
(3) Subclause (2) has effect subject to subclauses (4) and (5).
ABA determinations
(4) The ABA may make a written determination providing that, for the purposes of this clause, a specified radio program or specified matter is taken to be a designated radio program.
(5) The ABA may make a written determination providing that, for the purposes of this clause, a specified radio program or specified matter is taken not to be a designated radio program.
(6) A determination under subclause (4) or (5) has effect accordingly.
(7) A determination under subclause (4) or (5) is to be an instrument of a legislative character.
(8) A determination under subclause (4) or (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Condition does not apply to incidental or background audio content
(8A) The condition set out in subclause (1) does not apply to the transmission of audio content that is incidental to, or provided as background to, matter displayed on the screen.
Condition does not apply to Internet carriage services
(9) The condition set out in subclause (1) does not apply to the transmission of so much of a datacasting service as consists of an Internet carriage service (other than a declared Internet carriage service).
Condition does not apply to certain content copied from the Internet
(10) The condition set out in subclause (1) does not apply to the transmission of matter if:
(a) the matter is content that has been copied from the Internet; and
(b) the content is selected by the datacasting licensee concerned; and
(c) there is in force an exemption order under subclause 27A(1) in relation to the transmission of the matter.
22 Audio content condition does not apply to Parliamentary proceedings etc.
The condition set out in clause 21 does not prevent a datacasting licensee from transmitting live audio content that consists of:
(a) the proceedings of, or the proceedings of a committee of, a Parliament; or
(b) the proceedings of a court or tribunal in Australia; or
(c) the proceedings of an official inquiry or Royal Commission in Australia; or
(d) a hearing conducted by a body established for a public purpose by a law of the Commonwealth or of a State or Territory.
23 Audio content condition does not apply to matter that consists of no more than text or still visual images etc.
(1) The condition set out in clause 21 does not prevent a datacasting licensee from transmitting matter that consists of no more than:
(a) text; or
(b) text accompanied by associated sounds; or
(c) still visual images; or
(d) still visual images accompanied by associated sounds; or
(e) any combination of matter covered by the above paragraphs; or
(f) any combination of:
(i) matter that is covered by any of the above paragraphs (the basic matter); and
(ii) animated images (with or without associated sounds);
where:
(iii) having regard to the substance of the animated images, it would be concluded that the animated images are ancillary or incidental to the basic matter; or
(iv) the animated images consist of advertising or sponsorship material.
(2) In determining the meaning of the expressions radio or radio program, when used in a provision of this Act, subclause (1) is to be disregarded.
23A Audio content condition does not apply to advertising or sponsorship material
The condition set out in clause 21 does not prevent a datacasting licensee from transmitting advertising or sponsorship material.
Division 2A—Genre conditions: anti‑avoidance
23B Anti‑avoidance—declared Internet carriage services
(1) If:
(a) the whole or a part of a datacasting service provided under a datacasting licence consists of an Internet carriage service; and
(b) one or more persons enter into, begin to carry out, or carry out, a scheme; and
(c) the ABA is of the opinion that the person, or any of the persons, who entered into, began to carry out, or carried out, the scheme did so for the sole or dominant purpose of avoiding the application to the licensee of Division 1 or 2;
the ABA may, by writing, determine that, for the purposes of the application of this Schedule to the licensee, the Internet carriage service is a declared Internet carriage service.
(2) The person, or any of the persons, referred to in paragraphs (1)(b) and (c) may be the licensee.
(3) A determination under subclause (1) has effect accordingly.
(4) In this clause:
scheme means:
(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether there are 2 or more parties or only one party involved.
Division 3—Other conditions
24 General conditions
(1) Each datacasting licence is subject to the following conditions:
(a) the licensee will comply with the requirements of clauses 3, 3A, 4, 5 and 6 of Schedule 2 (as modified by subclause (4) of this clause);
(b) the licensee will not, in contravention of the Tobacco Advertising Prohibition Act 1992, transmit a tobacco advertisement within the meaning of that Act;
(c) the licensee will comply with standards applicable to the licence under clause 31;
(ca) the licensee will comply with any regulations made for the purposes of clause 36B of Schedule 4;
(d) the licensee will not use the datacasting service in the commission of an offence against another Act or a law of a State or Territory;
(e) the licensee will not transmit datacasting content that has been classified as RC, X or NVE by the Classification Board;
(f) the licensee will not transmit datacasting content that has been classified R by the Classification Board unless:
(i) the content has been modified as mentioned in paragraph 28(4)(b); or
(ii) access to the program is subject to a restricted access system (within the meaning of clause 27);
(g) the licensee will comply with technical standards applicable to the licensee under clause 60;
(h) if the whole or a part of the datacasting service consists of an Internet carriage service—the licensee will comply with an online provider rule (within the meaning of Schedule 5) that is applicable to the licensee in relation to the Internet carriage service.
(2) The conditions set out in paragraphs (1)(a), (c), (e) and (f) do not apply in relation to:
(a) the transmission of so much of a datacasting service as consists of an Internet carriage service; or
(b) the transmission of ordinary electronic mail.
(3) The condition set out in paragraph (1)(b) does not apply in relation to the transmission of ordinary electronic mail.
(4) Clauses 3, 3A, 4, 5 and 6 of Schedule 2 apply to datacasting services provided under datacasting licences in a corresponding way to the way in which those clauses apply to broadcasting services, and, in particular, those clauses have effect as if:
(a) a reference in those clauses to a person providing broadcasting services under a class licence included a reference to a person who is a datacasting licensee; and
(b) a reference in those clauses to a broadcasting service included a reference to a datacasting service; and
(c) a reference in those clauses to broadcast included a reference to provide on a datacasting service; and
(d) subclause 4(2) of Schedule 2 were not applicable to political matter provided under a datacasting licence, where the political matter consists of no more than:
(i) text; or
(ii) still visual images; or
(iii) any combination of matter covered by the above subparagraphs; and
(e) clause 4 of Schedule 2 also provided that, if a datacasting licensee provides on a datacasting service, at the request of another person, political matter that consists of no more than:
(i) text; or
(ii) still visual images; or
(iii) any combination of matter covered by the above subparagraphs;
the licensee must also cause to be displayed to end‑users the required particulars in relation to the political matter in a form approved in writing by the ABA.
(5) Subclause (4) does not apply to:
(a) the transmission of so much of a datacasting service as consists of an Internet carriage service; or
(b) the transmission of ordinary electronic mail.
25 Suitability condition
(1) Each datacasting licence is subject to the condition that the licensee will remain a suitable licensee.
(2) For the purposes of this clause, a person is a suitable licensee if the ABA has not decided that subclause (3) applies to the person.
(3) The ABA may, if it is satisfied that allowing a particular person to provide, or continue to provide, datacasting services under a datacasting licence would lead to a significant risk of:
(a) an offence against this Act or the regulations being committed; or
(b) a breach of the conditions of the licence occurring;
decide that this subclause applies to the person.
(4) In deciding whether such a risk exists, the ABA is to take into account:
(a) the business record of the person; and
(b) the person’s record in situations requiring trust and candour; and
(c) the business record of each person who is in a position to control the licence; and
(d) the record in situations requiring trust and candour of each such person; and
(e) whether the first‑mentioned person, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations.
(5) This clause does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).
26 Additional conditions imposed by the ABA
(1) The ABA may, by written notice given to a datacasting licensee:
(a) impose an additional condition on the licence; or
(b) vary or revoke a condition of the licence imposed under this clause.
(2) If the 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) make the proposed changes available on the Internet.
(3) Action taken under subclause (1) must not be inconsistent with conditions set out in:
(a) clause 14; or
(b) clause 16; or
(c) clause 21; or
(d) clause 24; or
(e) clause 25.
(4) Conditions of datacasting licences varied or imposed by the ABA must be relevant to the datacasting services to which those licences relate.
(5) Without limiting the range of conditions that may be imposed, the ABA may impose a condition on a datacasting licensee:
(a) requiring the licensee to comply with a code of practice that is applicable to the licensee; or
(b) designed to ensure that a breach of a condition by the licensee does not recur.
ABA to maintain Register of conditions
(6) The ABA is to maintain a register in which it includes particulars of:
(a) conditions imposed under this clause; and
(b) variations of conditions under this clause; and
(c) revocations of conditions under this clause.
(7) The Register may be maintained by electronic means.
(8) The Register is to be made available for inspection on the Internet.
27 Restricted access system
(1) The ABA may, by written instrument, declare that a specified access‑control system is a restricted access system for the purposes of this Division. A declaration under this subclause has effect accordingly.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(2) In making an instrument under subclause (1), the ABA must have regard to:
(a) the objective of protecting children from exposure to matter that is unsuitable for children; and
(b) such other matters (if any) as the ABA considers relevant.
(3) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Division 4—Exemption orders for content copied from the Internet
27A Exemption orders in relation to content copied from the Internet
(1) If the ABA is satisfied that:
(a) matter is proposed to be transmitted by a datacasting licensee; and
(b) the matter is content that is proposed to be copied from the Internet; and
(c) the content is proposed to be selected by the datacasting licensee; and
(d) if it were assumed that clause 20AA and subclause 21(10) had not been enacted:
(i) any breach of the conditions set out in clauses 14 and 16 and subclause 21(1) that would arise from the transmission of the matter would be of a minor, infrequent or incidental nature; or
(ii) the transmission of the matter would not be contrary to the purpose of clauses 14, 16 and 21;
the ABA may, by writing, make an exemption order in relation to the transmission of the matter.
(2) If the ABA receives a request from a datacasting licensee to make an exemption order in relation to the transmission of matter by the licensee, the ABA must use its best endeavours to make that decision within 28 days after the request was made.
Part 4—Codes of practice
28 Development of codes of practice
(1) The Parliament intends that:
(a) a group that the ABA is satisfied represents datacasting licensees should develop codes of practice that are to be applicable to the datacasting operations of datacasting licensees; and
(b) those codes of practice should be developed:
(i) in consultation with the ABA; and
(ii) taking account of any relevant research conducted by the ABA.
Content of codes of practice
(2) Codes of practice may relate to:
(a) preventing the transmission of matter that, in accordance with community standards, is not suitable to be transmitted by datacasting licensees; and
(b) methods of ensuring that the protection of children from exposure to datacasting content which may be harmful to them is a high priority; and
(c) methods of classifying datacasting content that reflect community standards; and
(d) promoting accuracy and fairness in datacasting content that consists of news or current affairs; and
(e) preventing the transmission of datacasting content that:
(i) simulates news or events in a way that misleads or alarms end‑users; or
(ii) depicts the actual process of putting a person into a hypnotic state; or
(iii) is designed to induce a hypnotic state in end‑users; or
(iv) uses or involves the process known as subliminal perception or any other technique that attempts to convey information to end‑users by transmitting messages below or near the threshold of normal awareness; and
(f) datacasting content that consists of:
(i) advertising; or
(ii) sponsorship announcements; and
(g) methods of:
(i) handling complaints from the public about datacasting content or compliance with codes of practice; and
(ii) reporting to the ABA on complaints so made; and
(h) in a case where there are customers of datacasting licensees—dealings with those customers, including methods of billing, fault repair, privacy and credit management; and
(i) such other matters relating to datacasting content as are of concern to the community.
Classification etc.
(3) In developing codes of practice relating to matters referred to in paragraphs (2)(a) and (c), community attitudes to the following matters are to be taken into account:
(a) the portrayal in datacasting content of physical and psychological violence;
(b) the portrayal in datacasting content of sexual conduct and nudity;
(c) the use in datacasting content of offensive language;
(d) the portrayal in datacasting content of the use of drugs, including alcohol and tobacco;
(e) the portrayal in datacasting content of matter that is likely to incite or perpetuate hatred against, or vilifies, any person or group on the basis of ethnicity, nationality, race, gender, sexual preference, age, religion or physical or mental disability;
(f) such other matters relating to datacasting content as are of concern to the community.
(4) In developing codes of practice referred to in paragraph (2)(a), (b) or (c), the group that the ABA is satisfied represents datacasting licensees must ensure that:
(a) for the purpose of classifying films—those codes apply the film classification system administered by the Classification Board; and
(b) those codes provide for methods of modifying films having particular classifications under that system so that the films are suitable to be transmitted; and
(c) those codes provide for the provision of advice to consumers on the reasons for films receiving a particular classification; and
(d) for the purpose of classifying interactive computer games—those codes apply the computer games classification system administered by the Classification Board; and
(e) those codes provide for the provision of advice to consumers on the reasons for interactive computer games receiving a particular classification; and
(f) for the purpose of classifying content (other than films or interactive computer games)—those codes apply the film classification system administered by the Classification Board in a corresponding way to the way in which that system applies to films; and
(g) those codes provide for methods of modifying content (other than films or interactive computer games) having particular classifications under that system (as correspondingly applied) so that the content is suitable to be transmitted; and
(h) those codes provide for the provision of advice to consumers on the reasons for content (other than films or interactive computer games) receiving a particular classification.
(5) In developing codes of practice referred to in paragraph (2)(a) or (b), the group that the ABA is satisfied represents datacasting licensees must ensure that films classified as “M” or “MA” do not portray material that goes beyond the previous “AO” classification criteria.
Registration of codes of practice
(6) If:
(a) the group that the ABA is satisfied represents datacasting licensees develops a code of practice to be observed in the conduct of the datacasting operations of those licensees; and
(b) the 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 datacasting licensees; 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.
Interactive computer game
(7) In this clause:
interactive computer game includes a computer game within the meaning of the Classification (Publications, Films and Computer Games) Act 1995.
29 Review by the ABA
(1) The ABA must periodically conduct a review of the operation of subclause 28(4) to see whether that subclause is in accordance with prevailing community standards.
(2) If, after conducting such a review, the ABA concludes that subclause 28(4) is not in accordance with prevailing community standards, the ABA must recommend to the Minister appropriate amendments to this Act that would ensure that subclause 28(4) is in accordance with prevailing community standards.
(3) If the Minister receives a recommendation under subclause (2), the Minister must cause a copy of the recommendation to be tabled in each House of the Parliament within 15 sitting days of that House after receiving the recommendation.
30 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 clause 28.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the Internet.
31 ABA may determine 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 clause 28 is not operating to provide appropriate community safeguards for a matter referred to in subclause 28(2) in relation to the datacasting operations of datacasting licensees; and
(b) the ABA is satisfied that it should determine a standard in relation to that matter;
the ABA must, in writing, determine a standard in relation to that matter.
(2) If:
(a) no code of practice has been registered under clause 28 for a matter referred to in subclause 28(2); and
(b) the 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.
(3) A standard determined under this clause is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
32 Consultation on standards
The ABA must, before determining, varying or revoking a standard, seek public comment on the proposed standard or the variation or revocation.
33 Notification of determination or variation or revocation of standards
If the 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.
34 Limitation of ABA’s power in relation to standards
(1) The ABA must not determine a standard that requires that, before datacasting content is transmitted, the datacasting content, or a sample of the datacasting content, be approved by the ABA or by a person or body appointed by the ABA.
(2) However, the ABA may determine such a standard in relation to datacasting content for children.
35 This Part does not apply to Internet carriage services or ordinary electronic mail
This Part does not apply to:
(a) the transmission of so much of a datacasting service as consists of an Internet carriage service; or
(b) the transmission of ordinary electronic mail.
35A This Part does not apply to the ABC or SBS
For the purposes of this Part, the Australian Broadcasting Corporation and the Special Broadcasting Service Corporation are taken not to be datacasting licensees.
Note: If the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation is otherwise a datacasting licensee, it is a duty of the Board of the Corporation to develop a code of practice that relates to the service provided under the licence. See paragraph 8(1)(e) of the Australian Broadcasting Corporation Act 1983 and paragraph 10(1)(j) of the Special Broadcasting Service Act 1991.
Part 5—Complaints to the ABA about datacasting services
36 Complaints about offences or breach of licence conditions
(1) If a person believes that a datacasting licensee has:
(a) committed an offence against this Act or the regulations; or
(b) breached a condition of the datacasting licence;
the person may make a complaint to the ABA about the matter.
(2) If a person believes that another person is providing a datacasting service without a datacasting licence that authorises the provision of that service, the first‑mentioned person may make a complaint to the ABA about the matter.
37 Complaints under codes of practice
(1) If:
(a) a person has made a complaint to a datacasting licensee about a matter relating to:
(i) datacasting content; or
(ii) compliance with a code of practice that applies to the datacasting operations of datacasting licensees and that is included in the Register of codes of practice; and
(b) if there is a relevant code of practice relating to the handling of complaints of that kind—the complaint was made in accordance with that code of practice; and
(c) either:
(i) the person has not received a response within 60 days after making the complaint; or
(ii) the person has received a response within that period but considers that response to be inadequate;
the person may make a complaint to the ABA about the matter.
(2) This clause does not apply to:
(a) the transmission of so much of a datacasting service as consists of an Internet carriage service; or
(b) the transmission of ordinary electronic mail.
(3) Also, this clause does not apply if the datacasting licensee is the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
Note: Sections 150 to 153 deal with complaints about a datacasting service provided by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
38 Investigation of complaints by the ABA
(1) The ABA must investigate the complaint.
(2) However, 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 subclause 36(1)—the complaint does not relate to:
(i) an offence against this Act or the regulations; or
(ii) a breach of a condition of a licence.
(3) The ABA must notify the complainant of the results of such an investigation.
Part 6—Control of datacasting transmitter licences
41 Datacasting transmitter licences not to be controlled by ABC or SBS
(1) The Australian Broadcasting Corporation must not be in a position to exercise control of a datacasting transmitter licence.
(2) The Special Broadcasting Service Corporation must not be in a position to exercise control of a datacasting transmitter licence.
Part 7—Nominated datacaster declarations
42 Object of this Part
The object of this Part is to provide for the making of declarations (nominated datacaster declarations) that allow the following licences to be held by different persons:
(a) a datacasting licence that authorises the provision of a datacasting service;
(b) a datacasting transmitter licence for a radiocommunications transmitter that is for use for transmitting the datacasting service.
43 Datacasting transmitter licence
A reference in this Part to a datacasting transmitter licence does not include a reference to an authorisation under section 114 of the Radiocommunications Act 1992.
44 Applications for nominated datacaster declarations
(1) If there is:
(a) a datacasting licence that authorises the provision of a datacasting service; and
(b) a datacasting transmitter licence for a transmitter that is intended for use for transmitting the datacasting service;
the licensee of the datacasting transmitter licence may apply to the ABA for a nominated datacaster declaration in relation to the provision of the datacasting service under the datacasting licence.
(2) An application must be accompanied by:
(a) the application fee determined in writing by the ABA; and
(b) the consent of the licensee of the datacasting licence.
(3) The application and consent must be:
(a) in writing; and
(b) in accordance with a form approved in writing by the ABA.
45 Making a nominated datacaster declaration
(1) After considering the application, the ABA must declare in writing that the provision of the datacasting service under the datacasting licence is nominated in relation to the datacasting transmitter licence if the ABA is satisfied that:
(a) the licensee of the datacasting transmitter licence will transmit the datacasting service on behalf of the licensee of the datacasting licence; and
(b) the licensee of the datacasting transmitter licence will not be involved in the selection or provision of datacasting content to be transmitted on the datacasting service.
(2) The ABA must give a copy of the declaration to:
(a) the applicant; and
(b) the licensee of the datacasting licence.
(3) If the ABA refuses to make a nominated datacaster declaration, the ABA must give written notice of the refusal to:
(a) the applicant; and
(b) the licensee of the datacasting licence.
46 Effect of nominated datacaster declaration
If:
(a) a nominated datacaster declaration is in force; and
(b) the licensee of the datacasting transmitter licence transmits the datacasting service on behalf of the licensee of the datacasting licence;
then:
(c) for the purposes of the Radiocommunications Act 1992, the licensee of the datacasting licence is taken not to operate the radiocommunications transmitter for any purpose in connection with that transmission; and
(d) for the purposes of this Act:
(i) the licensee of the datacasting licence is taken to provide the datacasting service; and
(ii) the licensee of the datacasting transmitter licence is taken not to provide the datacasting service; and
(e) for the purposes of this Act (other than Schedule 1 or clause 60 of this Schedule) and the Tobacco Advertising Prohibition Act 1992, any content that is transmitted by the licensee of the datacasting transmitter licence on behalf of the licensee of the datacasting licence:
(i) is taken to be content transmitted by the licensee of the datacasting licence; and
(ii) is not taken to be content transmitted by the licensee of the datacasting transmitter licence.
47 Revocation of nominated datacaster declaration
(1) The ABA must, by writing, revoke a nominated datacaster declaration if the ABA is satisfied that:
(a) the licensee of the datacasting transmitter licence is not transmitting, or does not propose to transmit, the datacasting service on behalf of the licensee of the datacasting licence; or
(b) the licensee of the datacasting transmitter licence is involved, or proposes to become involved, in the selection or provision of datacasting content to be transmitted on the datacasting service.
(2) The ABA must, by writing, revoke a nominated datacaster declaration if:
(a) the licensee of the datacasting transmitter licence; or
(b) the licensee of the datacasting licence;
gives the ABA a written notice stating that the licensee does not consent to the continued operation of the declaration.
(3) The ABA must give a copy of the revocation to:
(a) the licensee of the datacasting transmitter licence; and
(b) the licensee of the datacasting licence.
(4) A revocation under subclause (1) or (2) takes effect on the date specified in the revocation.
(5) The ABA must not revoke a nominated datacaster declaration under subclause (1) unless the ABA has first:
(a) given the licensee of the datacasting transmitter licence a written notice:
(i) setting out a proposal to revoke the declaration; and
(ii) inviting the licensee to make a submission to the ABA on the proposal; and
(b) given the licensee of the datacasting licence a written notice:
(i) setting out a proposal to revoke the declaration; and
(ii) inviting the licensee to make a submission to the 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.
(6) A time limit specified in a notice under subclause (5) must run for at least 7 days.
(7) A person must not enter into a contract or arrangement under which the person or another person is:
(a) prevented from giving a notice under subclause (2); or
(b) subject to any restriction in relation to the giving of a notice under subclause (2).
(8) A contract or arrangement entered into in contravention of subclause (7) is void.
48 Register of nominated datacaster declarations
(1) The ABA is to maintain a register in which the ABA includes particulars of all nominated datacaster declarations currently in force.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the Internet.
Part 8—Remedies for breaches of licensing provisions
Division 1—Providing a datacasting service without a licence
49 Prohibition on providing a datacasting service without a licence
(1) A person is guilty of an offence if the person:
(a) intentionally provides a datacasting service; and
(b) does not have a datacasting licence to provide the service.
Penalty: 20,000 penalty units.
(2) A person who contravenes subclause (1) is guilty of a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
Note 1: For exemptions for broadcasters, see clause 51.
Note 2: For exemptions for designated teletext services, see clause 51A.
50 Notice for providing a datacasting service without a licence
(1) If a person is providing a datacasting service without a datacasting 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) a person has been given a notice under subclause (1); and
(b) the person intentionally engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(3) A person who contravenes subclause (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.
Note 1: For exemptions for broadcasters, see clause 51.
Note 2: For exemptions for designated teletext services, see clause 51A.
51 Exemption for broadcasting licensees etc.
(1) Clauses 49 and 50 do not apply to the provision of a broadcasting service under, and in accordance with the conditions of:
(a) a licence allocated by the ABA under this Act (other than this Schedule); or
(b) a class licence.
(2) Clauses 49 and 50 do not apply to the provision of a national broadcasting service.
51A Exemption for designated teletext services
Clauses 49 and 50 do not apply to the provision of a designated teletext service (within the meaning of Schedule 4).
Division 2—Breaches of licence conditions
52 Offence for breach of conditions
(1) A person is guilty of an offence if:
(a) the person is a datacasting licensee; and
(b) the person intentionally engages in conduct; and
(c) the person’s conduct breaches a condition of the licence set out in clause 14, 16, 20B, 21 or 24.
Penalty: 2,000 penalty units.
(2) A person who contravenes subclause (1) is guilty of a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
53 Remedial directions—breach of conditions
(1) If a datacasting licensee has breached, or is breaching, a condition of the licence (other than the condition set out in clause 25), the ABA may, by written notice given to the licensee, direct the licensee to take action directed towards ensuring that the licensee does not breach the condition, or is unlikely to breach the condition, in the future.
(2) The following are examples of the kinds of direction that may be given to a licensee under subclause (1):
(a) a direction that the licensee implement effective administrative systems for monitoring compliance with a condition of the licence;
(b) a direction that the licensee implement a system designed to give the licensee’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a condition of the licence, in so far as those requirements affect the employees, agents or contractors concerned.
(3) A person is not required to comply with a notice under subclause (1) until the end of the period specified in the notice. That period must be reasonable.
(4) A person is guilty of an offence if:
(a) a person has been given a notice under subclause (1); and
(b) the person intentionally engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(5) A person who contravenes subclause (4) is guilty of a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
54 Suspension and cancellation
(1) If a person who is a datacasting licensee:
(a) fails to comply with a notice under clause 53; or
(b) breaches a condition of the licence;
the ABA may, by written notice given to the person:
(c) suspend the licence for such period, not exceeding 3 months, as is specified in the notice; or
(d) cancel the licence.
(2) If a datacasting licence is suspended because of a breach of a condition set out in clause 14, 16, 20B or 21, the ABA may take such action, by way of suspending one or more datacasting licences held by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ABA considers necessary to ensure that the same, or a substantially similar, datacasting service is not transmitted by the licensee or the related body corporate, as the case may be, during the period of suspension.
(3) If a datacasting licence is cancelled because of a breach of a condition set out in clause 14, 16, 20B or 21, the ABA may take such action, by way of cancelling one or more datacasting licences held by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ABA considers necessary to ensure that the same, or a substantially similar, datacasting service is not transmitted by the licensee or the related body corporate, as the case may be, at a time after the cancellation.
(4) If the ABA proposes to take action against a person under subclause (1), (2) or (3), 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.
55 Injunctions
Restraining injunctions
(1) If a person who is a datacasting licensee has engaged, is engaging or is proposing to engage, in any conduct in contravention of a condition of the licence (other than a condition set out in clause 25), the Federal Court may, on the application of the ABA, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.
(2) If a person has engaged, is engaging or is proposing to engage, in any conduct in contravention of clause 49, the Federal Court may, on the application of the ABA, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.
Performance injunctions
(3) If:
(a) a person who is a datacasting licensee has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is or would be a contravention of a condition of the licence (other than a condition set out in clause 25);
the Federal Court may, on the application of the ABA, grant an injunction requiring the person to do that act or thing.
56 Federal Court’s powers relating to injunctions
Grant of interim injunction
(1) If an application is made to the Federal Court for an injunction under clause 55, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that clause.
No undertakings as to damages
(2) The Federal Court is not to require an applicant for an injunction under clause 55, as a condition of granting an interim injunction, to give any undertakings as to damages.
Discharge etc. of injunctions
(3) The Federal Court may discharge or vary an injunction granted under clause 55.
Certain limits on granting injunctions do not apply
(4) The power of the Federal Court under clause 55 to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:
(a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.
(5) The power of the Federal Court under clause 55 to grant an injunction requiring a person to do an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.
Other powers of the court unaffected
(6) The powers conferred on the Federal Court under clause 55 are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
57 Stay of proceedings relating to additional licence conditions, remedial directions and suspension/cancellation decisions
(1) For the purposes of this clause, an eligible decision is:
(a) a decision under clause 26 to impose or vary a condition of a datacasting licence; or
(b) a decision to give a direction under clause 53 (which deals with remedial directions); or
(c) a decision to suspend or cancel a datacasting licence under clause 54.
(2) An order must not be made under paragraph 15(1)(a) or 15A(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 in relation to an eligible decision if:
(a) the order has the effect of suspending the operation of the eligible decision for more than 3 months; or
(b) the order and any previous order or orders made under the paragraph concerned have the combined effect of suspending the operation of the eligible decision for more than 3 months.
(3) An order must not be made under paragraph 15(1)(b) or 15A(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 in relation to an eligible decision if:
(a) the order has the effect of staying particular proceedings under the eligible decision for more than 3 months; or
(b) the order and any previous order or orders made under the paragraph concerned have the combined effect of staying particular proceedings under the eligible decision for more than 3 months.
(4) If:
(a) a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to an eligible decision; and
(b) an order could be made staying, or otherwise affecting the operation or implementation of, the eligible decision pending the finalisation of the application;
such an order must not be made if:
(c) the order has the effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months; or
(d) the order and any previous order or orders covered by paragraph (b) have the combined effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months.
(5) If:
(a) a person applies to the Administrative Appeals Tribunal for review of an eligible decision; and
(b) an order could be made under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 staying, or otherwise affecting the operation or implementation of, the eligible decision;
such an order must not be made if:
(c) the order has the effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months; or
(d) the order and any previous order or orders covered by paragraph (b) have the combined effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months.
Part 9—Review of decisions
58 Review by the Administrative Appeals Tribunal
An application may be made to the Administrative Appeals Tribunal for a review of a decision set out in the second column of the table made under the provision of this Schedule set out in the third column, but such an application may only be made by the person described in the fourth column.
Reviewable decisions |
Item | Decision | Provision | Person who may apply |
1 | refusal to allocate datacasting licence | clause 7 or 8 | the applicant |
2 | that a person is not a suitable applicant | subclause 9(1) | the person |
2A | that an Internet carriage service is a declared Internet carriage service | subclause 23B(1) | the licensee |
3 | that a person is not a suitable licensee | subclause 25(3) | the licensee |
4 | Variation of datacasting licence conditions or imposition of new conditions | subclause 26(1) | the licensee |
4A | refusal to make an exemption order | clause 27B | the licensee |
5 | refusal to include a code of practice in the Register | subclause 28(6) | the relevant industry group |
6 | refusal to make a nominated datacaster declaration | clause 45 | the licensee of the datacasting transmitter licence or the licensee of the datacasting licence |
7 | revocation of a nominated datacaster declaration | clause 47 | the licensee of the datacasting transmitter licence or the licensee of the datacasting licence |
8 | to give or vary, or to refuse to revoke, a direction | clause 53 | the licensee |
9 | suspension or cancellation of datacasting licence | clause 54 | the licensee |
59 Notification of decisions to include notification of reasons and appeal rights
If the ABA makes a decision that is reviewable under clause 58, 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 10—Miscellaneous
60 Datacasting technical standards
(1) The regulations may determine technical standards:
(a) that are to be observed by datacasting licensees in relation to the provision by the licensees of datacasting services; and
(b) that are to be observed by holders of:
(i) datacasting transmitter licences; and
(ii) designated broadcasting transmitter licences;
in relation to the transmission by the holders of datacasting services, where there is in force a datacasting licence authorising the provision of the datacasting service concerned.
(2) Standards under subclause (1), to the extent that they deal with conditional access systems, must be directed towards ensuring the achievement of the policy objective that, as far as is practicable, those systems should be open to all providers of eligible datacasting services.
(2A) Standards under subclause (1), to the extent that they deal with application program interfaces, must be directed towards ensuring the achievement of the policy objective that, as far as is practicable, those interfaces should be open to all providers of eligible datacasting services.
(3) If a transmitter licence is:
(a) a datacasting transmitter licence; or
(b) a designated broadcasting transmitter licence;
then, in addition to any conditions to which that licence is subject under the Radiocommunications Act 1992, the licence is taken to be subject to a condition that the holder of the transmitter licence, and any person authorised by the holder of the transmitter licence, must comply with a standard under subclause (1).
(4) Section 589 of the Telecommunications Act 1997 applies to regulations made for the purposes of this clause in a corresponding way to the way in which it applies to an instrument under that Act.
(5) In this clause:
application program interface has the meaning generally accepted within the broadcasting industry.
conditional access system means a conditional access system that:
(a) relates to the provision of one or more eligible datacasting services; and
(b) allows a provider of an eligible datacasting service to determine whether an end‑user is able to receive a particular eligible datacasting service.
designated broadcasting transmitter licence means a transmitter licence that, under section 100A, 100B, 102 or 102A of the Radiocommunications Act 1992, is taken to authorise the operation of a transmitter for transmitting datacasting services.
eligible datacasting service means:
(a) a datacasting service provided under, and in accordance with the conditions of, a datacasting licence; or
(b) a television broadcasting service transmitted in digital mode using the broadcasting services bands.
61 Review before 1 January 2003
(1) Before 1 January 2003, the Minister must cause to be conducted a review of whether any amendments of this Schedule should be made.
(2) The Minister must cause to be prepared a report of a review under subclause (1).
(3) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.
