Broadcasting Services Act 1992

Schedule 4—Digital television broadcasting

Note: See section 216A.

The following is a simplified outline of this Schedule:

• The ACMA 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 specified dates 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.

broadcasting transmission tower means:

(a) a tower; or

(b) a pole; 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.

Note: For overlapping coverage areas, see clause 5J.

designated HDTV multi‑channelled national television broadcasting service has the meaning given by clause 5E.

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.

digital‑only local market area has the meaning given by clause 5F.

exempt licence means a commercial television broadcasting licence allocated under section 38B for a remote licence area.

exempt remote area service has the meaning given by subclause 6(7F).

HDTV commercial television format standard means:

(a) if the licence area concerned is not a remote licence area—a standard under section 130A that relates to the format in which television programs are to be transmitted in HDTV digital mode by commercial television broadcasting licensees in such a licence area, where the relevant service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned under subclause 8(8); or

(b) if the licence area concerned is a remote licence area—a standard under section 130A that relates to the format in which television programs are to be transmitted in HDTV digital mode by commercial television broadcasting licensees in such a licence area, where the relevant service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned under subclause 8(10A).

HDTV digital mode has the meaning given by clause 4A.

HDTV multi‑channelled commercial television broadcasting service has the meaning given by clause 5B.

HDTV multi‑channelled national television broadcasting service has the meaning given by clause 5D.

HDTV national television format standard means:

(a) if the coverage area concerned is not a remote coverage area—a standard under section 130A that relates to the format in which television programs are to be transmitted in HDTV digital mode by national broadcasters in such a coverage area, where the relevant service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned under subclause 23(8); or

(b) if the coverage area concerned is a remote coverage area—a standard under section 130A that relates to the format in which television programs are to be transmitted in HDTV digital mode by national broadcasters in such a coverage area, where the relevant service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned under subclause 23(10A).

licence area means a licence area for a commercial television broadcasting licence.

local market area has the meaning given by clause 5F.

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

(d) Western Australia; or

(e) South Australia;

but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.

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.

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.

parent licence means a commercial television broadcasting licence referred to in subsection 38B(1) as a parent licence.

primary commercial television broadcasting service, in relation to a commercial television broadcasting licence, has the meaning given by clause 41G.

primary national television broadcasting service, in relation to a national broadcaster, has the meaning given by clause 41M.

primary satellite national television broadcasting service, in relation to a national broadcaster, has the meaning given by clause 41N.

radiocommunication has the same meaning as in the Radiocommunications Act 1992.

regional coverage area means an area that corresponds to a regional licence area.

regional licence area means a licence area that is not a metropolitan licence area, but does not include the licence area of a commercial television broadcasting licence allocated under section 38C.

remote coverage area means an area that corresponds to a remote licence area.

remote licence area has the meaning given by clause 5.

satellite delivery area means an area that corresponds to the licence area of a commercial television broadcasting licence allocated under section 38C.

SDTV commercial television format standard means:

(a) if the licence area concerned is not a remote licence area—a standard under section 130A that relates to the format in which television programs are to be transmitted in SDTV digital mode by commercial television broadcasting licensees in such a licence area; or

(b) if the licence area concerned is a remote licence area—a standard under section 130A that relates to the format in which television programs are to be transmitted in SDTV digital mode by commercial television broadcasting licensees in such a licence area.

SDTV digital mode has the meaning given by clause 4B.

SDTV multi‑channelled commercial television broadcasting service has the meaning given by clause 5A.

SDTV multi‑channelled national television broadcasting service has the meaning given by clause 5C.

SDTV national television format standard means:

(a) if the coverage area concerned is not a remote coverage area—a standard under section 130A that relates to the format in which television programs are to be transmitted in SDTV digital mode by national broadcasters in such a coverage area; or

(b) if the coverage area concerned is a remote coverage area—a standard under section 130A that relates to the format in which television programs are to be transmitted in SDTV digital mode by national broadcasters in such a coverage area.

simulcast‑equivalent period:

(a) in relation to a commercial television broadcasting service—has the meaning given by clause 4C; or

(b) in relation to a national television broadcasting service—has the meaning given by clause 4D.

simulcast period:

(a) in relation to a commercial television broadcasting service where the licence area concerned is a metropolitan licence area or a regional licence area, but 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.

4C Simulcast‑equivalent period for a licence area

(1) If there is no simulcast period for a licence area of a commercial television broadcasting licence, the ACMA may, by legislative instrument, declare that a specified period is the simulcast‑equivalent period for the licence area.

(2) Subclause (1) does not apply to a commercial television broadcasting licence allocated under section 38C.

4D Simulcast‑equivalent period for a coverage area

If there is no simulcast period for a coverage area in relation to a national television broadcasting service, the ACMA may, by legislative instrument, declare that a specified period is the simulcast‑equivalent period for the coverage area.

5 Remote licence area

(1) The ACMA may, by writing, determine that a specified licence area is a remote licence area for the purposes of this Schedule.

(1A) Subclause (1) does not apply to the licence area of a commercial television broadcasting licence allocated under section 38C.

(2) A determination under this clause has effect accordingly.

(3) A determination under this clause is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

5A SDTV multi‑channelled commercial television broadcasting service

(1) For the purposes of this Schedule, a commercial television broadcasting service is a SDTV multi‑channelled commercial television broadcasting service if:

(a) the service is provided by a commercial television broadcasting licensee; and

(b) the service is transmitted in SDTV digital mode:

(i) using multi‑channelling transmission capacity; or

(ii) with the use of a satellite; and

(c) the service is promoted as a service that is distinct from any other commercial television broadcasting service provided by the licensee; and

(d) the service is not the core commercial television broadcasting service.

(2) Paragraph (1)(d) ceases to have effect at the end of the simulcast period, or simulcast‑equivalent period, for the licence area concerned.

5B HDTV multi‑channelled commercial television broadcasting service

For the purposes of this Schedule, a commercial television broadcasting service is a HDTV multi‑channelled commercial television broadcasting service if:

(a) the service is provided by a commercial television broadcasting licensee; and

(b) the service is transmitted in HDTV digital mode:

(i) using multi‑channelling transmission capacity; or

(ii) with the use of a satellite; and

(c) the service is promoted as a service that is distinct from any other commercial television broadcasting service provided by the licensee.

5C SDTV multi‑channelled national television broadcasting service

(1) For the purposes of this Schedule, a national television broadcasting service is a SDTV multi‑channelled national television broadcasting service if:

(a) the service is provided by:

(i) the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or

(ii) the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; and

(b) the service is transmitted in SDTV digital mode:

(i) using multi‑channelling transmission capacity; or

(ii) with the use of a satellite; and

(c) the service is promoted as a service that is distinct from any other national television broadcasting service provided by the Corporation concerned; and

(d) the Corporation concerned has given the Minister a written notice electing that this subclause apply to the service.

(2) A notice under paragraph (1)(d) has no effect if:

(a) the notice relates to a national television broadcasting service transmitted by the Corporation concerned in a coverage area; and

(b) as a result of the notice being given, clause 19 would not apply to any national television broadcasting service provided by the Corporation in the coverage area.

(3) Subclause (2) ceases to have effect at the end of the simulcast period, or simulcast‑equivalent period, for the coverage area concerned.

(4) Paragraph (1)(d) does not apply to a national television broadcasting service provided with the use of a satellite.

5D HDTV multi‑channelled national television broadcasting service

For the purposes of this Schedule, a national television broadcasting service is a HDTV multi‑channelled national television broadcasting service if:

(a) the service is provided by:

(i) the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or

(ii) the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; and

(b) the service is transmitted in HDTV digital mode:

(i) using multi‑channelling transmission capacity; or

(ii) with the use of a satellite; and

(c) the service is promoted as a service that is distinct from any other national television broadcasting service provided by the Corporation concerned.

5E Designated HDTV multi‑channelled national television broadcasting service

(1) For the purposes of this Schedule, a designated HDTV multi‑channelled national television broadcasting service provided by a national broadcaster in a coverage area is:

(a) if the national broadcaster provides a single HDTV multi‑channelled national television broadcasting service in the coverage area—that service; or

(b) subject to subclauses (2) and (3), if the national broadcaster provides 2 or more HDTV multi‑channelled national television broadcasting services in the coverage area—each of those services.

(2) Paragraph (1)(b) does not apply to a HDTV multi‑channelled national television broadcasting service provided by a national broadcaster in a coverage area if the national broadcaster gives the Minister a written notice electing that paragraph (1)(b) not apply to the service.

(3) A notice under subclause (2) has no effect if, as a result of the notice being given, paragraph (1)(b) would not apply to any of the HDTV multi‑channelled national television broadcasting services provided by the national broadcaster in the coverage area.

5F Local market areas and digital‑only local market areas

(1) The Minister may, by legislative instrument:

(a) determine that a specified area is a local market area for the purposes of this Schedule; and

(b) determine that that area becomes a digital‑only local market area for the purposes of this Schedule at a specified time.

(2) An area must not be specified under paragraph (1)(a) unless it is wholly included in a licence area.

(3) A time must not be specified under paragraph (1)(b) unless it falls within the simulcast period for the licence area concerned.

(4) A subclause (1) determination is irrevocable.

Variation

(5) The Minister may, by legislative instrument, vary a subclause (1) determination.

(6) The Minister must not vary a subclause (1) determination after the time specified in the determination.

(7) If there is a variation of a subclause (1) determination, the time specified in the varied determination must not be earlier than 3 months before the time specified in the determination as it stood before any variation of the determination was made.

(8) If there is a variation (the current variation) of a subclause (1) determination, the time specified in the varied determination must not be later than 3 months after the time specified in the determination as it stood before any variation of the determination was made.

(9) Subclause (8) does not apply if:

(a) the time specified in the determination, as it stood before the current variation, would be likely to result in significant difficulties of a technical or engineering nature for:

(i) a commercial television broadcasting licensee for the licence area concerned; or

(ii) a national broadcaster; and

(b) those difficulties could not reasonably have been foreseen by the commercial television broadcasting licensee or the national broadcaster, as the case requires, as at 6 months before the time specified in the determination as it stood before the current variation.

(10) Subclause (5) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to other instruments under this Act.

Consultation

(11) Before making or varying a subclause (1) determination, the Minister must consult the ACMA.

5H Reports on transmission blackspots

On the first sitting day of each House of the Parliament after each 1 January, 1 April, 1 July and 1 October from 1 April 2009 until 1 September 2014, the Minister must cause a report to be laid before each House of the Parliament containing the following information:

(a) action taken to identify and rectify transmission infrastructure that would otherwise prevent the transmission of free to air television broadcasting services in SDTV digital mode in any area achieving the same level of coverage and potential reception quality as was achieved by the transmission of those services in analog mode; and

(b) the local market areas and regions where transmission issues have been identified and how many households will be affected.

5J Overlapping coverage areas

If:

(a) apart from this clause, a coverage area (the first coverage area) overlaps with another coverage area; and

(b) the last day of the simulcast period for the first coverage area is earlier than the last day of the simulcast period for the other coverage area;

this Schedule has effect as if the area of overlap were not part of the first coverage area.

Part 2—Commercial television

6 Commercial television conversion scheme

(1) As soon as practicable after the commencement of this clause, the ACMA 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 ACMA determines under the scheme;

(c) the objective that there should be a transitional period for a metropolitan licence area or a regional licence area, that is:

(i) to be known as the simulcast period; and

(ii) in the case of a metropolitan licence area—to run for 9 years or for such other period as is determined under subclause 6A(1) in relation to that area; and

(iia) in the case of a regional licence area—to run until the end of 31 December 2013 or for such other period as is determined under subclause 6A(2) 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 so much of that area as is not a digital‑only local market 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 so much of that area as is not a digital‑only local market 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 so much of that area as is not a digital‑only local market 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 so much of that area as is not a digital‑only local market area; and

(ii) transmitters used by the holder to transmit that service in analog mode in so much of that area as is not a digital‑only local market area;

(ga) the objective that, during the simulcast period for a licence area, no transmissions of commercial television broadcasting services in analog mode are to be made in so much of that area as is a digital‑only local market 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 ACMA 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 so much of that area as was not a digital‑only local market 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 so much of that area as was not a digital‑only local market area immediately before the end of that period;

(ja) the objective that, after a local market area becomes a digital‑only local market area, the transmission of a commercial television broadcasting service in SDTV digital mode in the digital‑only local market 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 the local market area immediately before the local market area became a digital‑only local market area;

(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 ACMA 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 ACMA 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 ACMA 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

(d) either:

(i) if the other licence was allocated before the commencement of section 38C—at or about the time when the other licence was allocated, the holder gave the ACMA a written notice electing that this subclause apply to both of the commercial television broadcasting services concerned; or

(ii) if the other licence was allocated after the commencement of section 38C—before the end of the simulcast period for the licence area of the other licence, the holder gave the ACMA a written notice electing that this subclause apply to the commercial television broadcasting services provided under the licences;

then:

(e) paragraphs (3)(d), (e) and (ha) do not apply to the commercial television broadcasting services provided under the licences; 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).

(5AA) 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 before 1 January 2001; and

(d) within 90 days after the commencement of this subclause, the holder gives the ACMA 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 the commercial television broadcasting services provided under the licences; 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 paragraphs (5A)(f) and (5AA)(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 the commercial television broadcasting services provided under the commercial television broadcasting licences referred to in whichever of paragraph (5A)(a) or (5AA)(a) is applicable 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.

(5BA) An election made under subclause (5A) or (5AA) remains in force until:

(a) it is revoked, by written notice given to the ACMA, by:

(i) if neither of the licences referred to in whichever of paragraph (5A)(a) or (5AA)(a) is applicable has been transferred since the making of the election—the holder of the licence allocated under section 38A or 38B; or

(ii) if the licence allocated under section 38A or 38B has been transferred since the making of the election—the holder of that licence; or

(iii) if a parent licence referred to in whichever of section 38A or 38B is applicable has been transferred since the making of the election—the holder of that parent licence; and

(b) the ACMA approves the revocation under clause 7B.

(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.

(5CA) For the purposes of paragraphs (3)(f), (j) and (ja), ignore any commercial television broadcasting service provided under a licence allocated under section 38C.

(5D) For the purposes of paragraphs (3)(ha) and (n), in determining the most efficient use of the spectrum, the ACMA 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 ACMA 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 ACMA 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

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 ACMA 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 ACMA determines under the scheme.

Note: See also clause 6B.

Special rules for section 38B licences in remote licence areas

(7B) Special rules apply to an exempt remote area service for a remote licence area for which an exempt licence has been allocated if written notice is given to the ACMA electing that this subclause applies by:

(a) the 2 existing licensees for that licence area (where the exempt licence is allocated to a joint‑venture company under subsection 38B(5)); or

(b) the licensee to whom the exempt licence is allocated (where the exempt licence is allocated under subsection 38B(6), (7), (8) or (9)).

The notice must be given at or about the time when the exempt licence was allocated.

(7C) The election remains in force for a company until:

(a) it is revoked, by written notice given to the ACMA, by:

(i) a company that made the election; or

(ii) if the election was made in relation to an exempt licence allocated under subsection 38B(5) and a parent licence has been transferred—by the licensee of the parent licence; or

(iii) if the election was made in relation to an exempt licence allocated under subsection 38B(6), (7), (8) or (9) and the exempt licence has been transferred—by the licensee of the exempt licence; and

(b) the ACMA approves the revocation under clause 7B.

(7F) An exempt remote area service for a remote licence area is:

(a) each of these:

(i) a commercial television broadcasting service provided by a joint‑venture company under an exempt licence that was allocated to the company under subsection 38B(5) for that licence area; and

(ii) the commercial television broadcasting services provided under the parent licences for that licence area; or

(b) each of these:

(i) a commercial television broadcasting service provided by a licensee under an exempt licence that was allocated to the licensee under subsection 38B(6), (7), (8) or (9) for that licence area; and

(ii) each other commercial television broadcasting service provided by that licensee for that licence area; or

(c) a commercial television broadcasting service provided by a licensee under an exempt licence for that licence area that is transferred to the licensee; or

(d) a commercial television broadcasting service provided under a parent licence for that licence area that is transferred to the licensee.

(7G) Subclauses (7) and (7A) do not apply to an exempt remote area service provided under an exempt licence while an election under subclause (7B) is in force for the service.

(7H) Part B of the commercial television conversion scheme must be directed towards ensuring the achievement of the policy objective that each exempt remote area service for a remote licence area should be authorised to be transmitted in SDTV digital mode using multi‑channelling transmission capacity while an election under subclause (7B) is in force for the service.

HDTV multi‑channelled commercial television broadcasting services

(7J) This clause does not apply to a HDTV multi‑channelled commercial television broadcasting service.

SDTV multi‑channelled commercial television broadcasting services

(7JA) This clause does not apply to a SDTV multi‑channelled commercial television broadcasting service.

Licences allocated under section 36 on or after 1 January 2007

(7K) This clause does not apply in relation to a commercial television broadcasting licence if the licence was allocated under section 36 on or after 1 January 2007.

Licences allocated under section 38C

(7KA) This clause does not apply to a commercial television broadcasting licence allocated under section 38C.

Licences allocated under subsection 40(1) on or after 1 January 2007

(7L) This clause does not apply in relation to a commercial television broadcasting licence if the licence was allocated under subsection 40(1) on or after 1 January 2007.

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

(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 ACMA 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 ACMA 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 ACMA must not make a determination under subclause (9) or (10) unless the ACMA 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

(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;

(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 ACMA 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

(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.

6A Determination of simulcast period—metropolitan and regional licence areas

(1) The Minister may, by legislative instrument, determine a period for the purposes of the application of subparagraph 6(3)(c)(ii) to a specified metropolitan licence area.

(2) The Minister may, by legislative instrument, determine a period for the purposes of the application of subparagraph 6(3)(c)(iia) to a specified regional licence area.

(3) A period determined under subclause (1) must end before the end of 31 December 2013.

Note: See subclause (11).

(4) A period determined under subclause (2) must end before the end of 31 December 2013.

Note: See subclause (11).

(5) A subclause (1) determination is irrevocable.

(6) A subclause (2) determination is irrevocable.

Variation

(7) The Minister may, by legislative instrument, vary:

(a) a subclause (1) determination; or

(b) a subclause (2) determination.

(8) The Minister must not vary:

(a) a subclause (1) determination; or

(b) a subclause (2) determination;

after the end of the period specified in the determination.

(9) If there is a variation of:

(a) a subclause (1) determination; or

(b) a subclause (2) determination;

the end of the period specified in the varied determination must not be earlier than 3 months before the end of the period specified in the determination as it stood before any variation of the determination was made.

(10) If there is a variation of:

(a) a subclause (1) determination; or

(b) a subclause (2) determination;

the end of the period specified in the varied determination must not be later than whichever is the earlier of the following:

(d) 3 months after the end of the period specified in the determination as it stood before any variation of the determination was made.

Note: See subclause (11).

(11) If there is a variation (the current variation) of:

(a) a subclause (1) determination; or

(b) a subclause (2) determination;

subclauses (3), (4) and (10) do not apply, so long as:

(c) the end of the period specified in the determination, as it stood before the current variation, would be likely to result in significant difficulties of a technical or engineering nature for:

(i) a commercial television broadcasting licensee for the licence area concerned; or

(ii) a national broadcaster; and

(d) those difficulties could not reasonably have been foreseen by the commercial television broadcasting licensee or the national broadcaster, as the case requires, as at 6 months before the end of the period specified in the determination as it stood before the current variation; and

(e) the end of the period specified in the varied determination is not later than the end of 30 June 2014.

(12) Subclause (7) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to other instruments under this Act.

Consultation

(13) Before making or varying:

(a) a subclause (1) determination; or

(b) a subclause (2) determination;

the Minister must consult the ACMA.

6B Determination of simulcast period—remote licence areas

(1) The ACMA must not determine a period for the purposes of paragraph 6(7A)(b) if the period ends after 31 December 2013.

(2) Subclause (1) does not apply in such circumstances (if any) as are specified in a legislative instrument made by the Minister.

6C Digital conversion of re‑transmission facilities

(1) In addition to the policy objectives set out in subclause 6(3), Part A of the commercial television conversion scheme must be directed towards ensuring the achievement of the policy objective set out in subclause (2).

(2) The objective is that, if:

(a) immediately before the commencement of this clause, a self‑help provider provided a service that does no more than re‑transmit programs that are transmitted by a commercial television broadcasting licensee within the licence area of the licence; and

(b) the self‑help provider did so using a radiocommunications transmitter operating at a particular location under the authority of a transmitter licence held by the self‑help provider; and

(c) the sole or principal purpose of the service provided by the self‑help provider was to enable persons living in a particular area to obtain or improve reception of the commercial television broadcasting service concerned; and

(d) the commercial television broadcasting licensee notifies the ACMA before:

(i) the 9‑month period ending on the earliest applicable digital television switch‑over date for the licence area; or

(ii) if this clause commences in that 9‑month period—the earliest applicable digital television switch‑over date for the licence area;

that the licensee is willing to transmit the commercial television broadcasting service, under a transmitter licence held by the commercial television broadcasting licensee, using a radiocommunications transmitter at or near that location; and

(e) such other conditions (if any) as are specified in the scheme are satisfied;

then:

(f) the commercial television broadcasting licensee should be authorised, under a transmitter licence held by the licensee, to transmit the commercial television broadcasting service in digital mode using a radiocommunications transmitter at or near that location; and

(g) if the radiocommunications transmitter mentioned in paragraph (b) is the sole radiocommunications transmitter the operation of which is authorised under the transmitter licence mentioned in that paragraph—the transmitter licence should be cancelled; and

(h) if the radiocommunications transmitter mentioned in paragraph (b) is not the sole radiocommunications transmitter authorised by the transmitter licence mentioned in that paragraph—the transmitter licence should be varied so that it ceases to authorise the operation of the radiocommunications transmitter.

(3) For the purposes of this clause, if:

(a) clause 6 applies to a commercial television broadcasting licence; and

(b) there is a simulcast period for the licence area of the licence; and

the last day of the simulcast period for the licence area is the applicable digital television switch‑over date for the licence area.

(4) For the purposes of this clause, if:

(a) clause 6 applies to a commercial television broadcasting licence; and

(b) there is a simulcast period for the licence area of the licence; and

the day on which the local market area becomes a digital‑only local market area is an applicable digital television switch‑over date for the licence area.

7 Scheme may confer administrative powers on the ACMA

The commercial television conversion scheme may make provision with respect to a matter by conferring on the ACMA 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 ACMA 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 ACMA believes should be shown in the plan; and

(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 ACMA to vary a digital channel plan.

(4) Subclause (1) does not apply in relation to a commercial television broadcasting licence allocated under section 38C.

7B Revocation of multi‑channelling election

Scope

(1) This clause applies if a commercial television broadcasting licensee gives the ACMA a notice of revocation under subclause 6(5BA) or (7C).

Approval of revocation

(2) If the ACMA is satisfied that there is sufficient radiofrequency spectrum available, the ACMA must, by notice in writing given to the licensee:

(a) approve the revocation; and

(b) specify a day as the day on which the revocation takes effect; and

(c) vary the relevant digital channel plan under the commercial television conversion scheme to allot a channel to the licensee.

(3) For the purposes of subclause (2), any part of the spectrum covered by a determination under subsection 34(3) is taken not to be available.

(4) The ACMA may, before the day specified under paragraph (2)(b), by notice in writing, vary the day on which the revocation takes effect.

Refusal to approve revocation

(5) If the ACMA refuses to approve the revocation, the ACMA must give written notice of the refusal to the licensee.

8 Transmitter licences

Grant of additional spectrum for digital transmission

(1) The commercial television conversion scheme must make provision for the issue of 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 ACMA 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

(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 ACMA 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) the issue, with effect from the end of the simulcast period, of one or more transmitter licences that authorise the transmission of commercial television broadcasting services in accordance with the commercial television broadcasting licence 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 requirements 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:

(i) paragraph 7(1)(ma) of Schedule 2; or

(ii) a SDTV commercial television format standard; or

(iii) a HDTV commercial television format standard; or

(iv) subclause 37E(1); or

(v) a standard under subclause 37E(3); and

(b) under the scheme, the ACMA gives the holder a written direction to comply with that provision or standard within the period specified in the direction (being a period that is not longer than one month); and

(d) the holder does not satisfy the ACMA that there are exceptional circumstances.

(8) Subclause (7) does not prevent the commercial television conversion scheme from making provision for the issue of a transmitter licence to replace a licence that was surrendered on the grounds of a contravention of a provision or standard mentioned in subparagraph (7)(a)(i), (iii), (iv) or (v). 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) paragraph 7(1)(mb) of Schedule 2; or

(d) a HDTV commercial television format standard; or

(e) a standard applicable to the holder under subclause 37G(1); or

(f) a standard applicable to the holder under subclause 37G(2).

(10A) Subclause (10) does not prevent the commercial television conversion scheme from making provision for the issue of a transmitter licence to replace a licence that was surrendered on the grounds of a contravention of the provision mentioned in paragraph (10)(b) or a standard mentioned in paragraph (10)(d), (e) or (f). 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 the variation of 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 ACMA

(1) The commercial television conversion scheme must make provision for requiring holders of commercial television broadcasting licences to prepare, and submit to the ACMA, one or more implementation plans relating to digital transmission, where the implementation plans are in accordance with the scheme.

(1A) Subclause (1) does not apply to a HDTV multi‑channelled commercial television broadcasting service.

(1AA) Subclause (1) does not apply to a SDTV multi‑channelled commercial television broadcasting service.

(1B) Subclause (1) does not apply in relation to a commercial television broadcasting licence if the licence was allocated under section 36 on or after 1 January 2007.

(1BA) Subclause (1) does not apply in relation to a commercial television broadcasting licence allocated under section 38C.

(1C) Subclause (1) does not apply in relation to a commercial television broadcasting licence if the licence was allocated under subsection 40(1) on or after 1 January 2007.

(2) The commercial television conversion scheme may provide for variation of implementation plans submitted to the ACMA 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 ACMA’s powers under sections 25, 26 and 33.

11 Reviews and reports

The commercial television conversion scheme may provide for the ACMA 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 ACMA considers appropriate.

13 ACMA to have regard to datacasting allocation power

(1) In formulating or varying the commercial television conversion scheme, the ACMA 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 ACMA may have regard.

14 ACMA 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 ACMA 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 ACMA may have regard.

15 Minister may give directions to the ACMA

(1) In formulating or varying the commercial television conversion scheme, the ACMA 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 ACMA must make provision for:

(a) public consultation; and

(b) consultation with holders of commercial television broadcasting licences; 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 ACMA 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;

(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 so much of that coverage area as is not a digital‑only local market 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 so much of that area as is not a digital‑only local market 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 so much of that area as is not a digital‑only local market 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 so much of that area as is not a digital‑only local market area; and

(ii) transmitters used by the national broadcaster to transmit that service in analog mode in so much of that area as is not a digital‑only local market area;

(ga) the objective that, during the simulcast period for a coverage area, no transmissions of national television broadcasting services in analog mode are to be made in so much of that area as is a digital‑only local market 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 ACMA 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 so much of that area as was not a digital‑only local market 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 so much of that area as was not a digital‑only local market area immediately before the end of that period;

(ja) the objective that, after a local market area becomes a digital‑only local market area, the transmission of a national television broadcasting service in SDTV digital mode in the digital‑only local market 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 the local market area immediately before the local market area became a digital‑only local market area;

(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 ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA 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

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.

SDTV multi‑channelled national television broadcasting services

(7B) This clause does not apply to a SDTV multi‑channelled national television broadcasting service.

HDTV multi‑channelled national television broadcasting services

(7C) This clause does not apply to a HDTV multi‑channelled national television broadcasting service.

Satellite national television broadcasting services

(7CA) This clause does not apply to a national television broadcasting service provided with the use of a satellite.

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

(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 ACMA 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 ACMA 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 ACMA must not make a determination under subclause (9) or (10) unless the ACMA 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

(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;

(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 ACMA 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

(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 SDTV multi‑channelled national television broadcasting service.

HDTV multi‑channelled national television broadcasting services

(1B) This clause does not apply to a HDTV 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:

(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 ACMA 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.

(10) The Minister may, by writing, delegate to:

(a) the Secretary of the Department; or

(b) an SES employee or acting SES employee in the Department;

the Minister’s power to approve, or to refuse to approve, variations to approved implementation plans.

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 ACMA

The national television conversion scheme may make provision with respect to a matter by conferring on the ACMA 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 ACMA 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 ACMA believes should be shown in the plan; and

(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 ACMA 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 the issue of 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 ACMA 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

(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 ACMA 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) the issue, with effect from the end of the simulcast period, of one or more transmitter licences that authorise the transmission of national television broadcasting services using the channel or channels mentioned in paragraph 19(3)(ha) of this Schedule.

Return of spectrum if format and HDTV requirements 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:

(i) subclause 35AA(1); or

(ii) a SDTV national television format standard; or

(iii) a HDTV national television format standard; or

(iv) subclause 37F(1); or

(v) a standard under subclause 37F(3); and

(b) under the scheme, the ACMA gives the national broadcaster a written direction to comply with that provision or standard within the period specified in the direction (being a period that is not longer than one month); and

(d) the national broadcaster does not satisfy the ACMA that there are exceptional circumstances.

(8) Subclause (7) does not prevent the national television conversion scheme from making provision for the issue of a transmitter licence to replace a licence that was surrendered on the grounds of a contravention of a provision or standard mentioned in subparagraph (7)(a)(i), (iii), (iv) or (v). 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) subclause 35AA(2); or

(d) a HDTV national television format standard; or

(e) a standard applicable to the national broadcaster under subclause 37H(1); or

(f) a standard applicable to the national broadcaster under subclause 37H(2).

(10A) Subclause (10) does not prevent the national television conversion scheme from making provision for the issue of a transmitter licence to replace a licence that was surrendered on the grounds of a contravention of the provision mentioned in paragraph (10)(b) or a standard mentioned in paragraph (10)(d), (e) or (f). 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 the variation of 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 ACMA’s powers under sections 25, 26 and 33.

25 Reviews and reports

The national television conversion scheme may provide for the ACMA 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 ACMA considers appropriate.

27 ACMA to have regard to datacasting allocation power

(1) In formulating or varying the national television conversion scheme, the ACMA 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 ACMA may have regard.

28 ACMA 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 ACMA 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 ACMA may have regard.

29 Minister may give directions to the ACMA

(1) In formulating or varying the national television conversion scheme, the ACMA 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 ACMA must make provision for:

(a) public consultation; and

(b) consultation with national broadcasters; 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 so much of that coverage area as is not a digital‑only local market area during the simulcast period for that coverage area unless the program is broadcast simultaneously by the national broadcaster in analog mode in so much of that coverage area as is not a digital‑only local market 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 SDTV multi‑channelled national television broadcasting service.

35A Certain transmissions to be disregarded

For the purposes of clauses 34 and 35, if:

(a) a transmitter licence was issued under section 100 of the Radiocommunications Act 1992; and

(b) the transmitter licence authorises the operation of one or more transmitters for transmitting one or more national television broadcasting services in digital mode;

ignore any transmission of those services in digital mode by those transmitters.

35AA National broadcasters must provide HDTV multi‑channelled national television broadcasting service during simulcast period etc.

(1) If there is a simulcast period for a coverage area, a national broadcaster must provide at least one HDTV multi‑channelled national television broadcasting service in the coverage area during that period.

(2) If:

(a) there is a simulcast‑equivalent period for a coverage area; and

(b) under the regulations, a national broadcaster is required to provide a HDTV multi‑channelled national television broadcasting service in the coverage area during that period;

the national broadcaster must comply with that requirement.

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 national television broadcasting services in digital mode, the national broadcaster must not operate, or permit the operation of, that transmitter to transmit in digital mode:

(a) a commercial broadcasting service that provides radio programs; or

(b) a subscription radio broadcasting service; or

(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 4—Standards and HDTV quotas

Division 2—HDTV quotas and standards

37DAA This Division does not apply in relation to section 38C licences

This Division does not apply in relation to a commercial television broadcasting licence allocated under section 38C.

37DA This Division does not apply in relation to licences allocated under subsection 40(1)

This Division does not apply in relation to a commercial television broadcasting licence if the licence was allocated under subsection 40(1).

37E Non‑remote areas—HDTV quotas for commercial television broadcasting licensees

(1) During the HDTV quota period for a commercial television broadcasting licence, the licensee must transmit at least the HDTV quota of high‑definition television programs in HDTV digital mode on the HDTV multi‑channelled commercial television broadcasting service provided by the licensee in the licence area.

(2) For the purposes of subclause (1), the HDTV quota period for a commercial television broadcasting licence is the period:

(a) beginning:

(i) if the licence was in force immediately before 1 January 2007 and is not the licence with the service licence number SL1150827—at the start of 1 January 2007; or

(ii) if the licence is in force immediately before 1 January 2008 and the service licence number of the licence is SL1150827—at the start of 1 January 2008; or

(iii) in any other case—at the start of the first day after the end of the 2‑year period that begins when the licensee is required to commence transmitting a commercial television broadcasting service in the licence area concerned; and

(b) ending at the end of the simulcast period, or the simulcast‑equivalent period, for the licence area concerned.

Note: The licence referred to in subparagraph (a)(ii) was allocated to Mildura Digital Television Pty Ltd for the Mildura/Sunraysia TV1 licence area.

(2A) For the purposes of subclause (1), the HDTV quota for a calendar year, or a part of a calendar year, included in the HDTV quota period is as follows:

(a) for a calendar year—1040 hours;

(b) for a part of a calendar year—1040 hours reduced on a pro‑rata basis.

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 multi‑channelled commercial television broadcasting service provided by the licensee in the licence area.

Application

(4) Subclauses (1), (2) and (3) apply in relation to the transmission of a HDTV multi‑channelled commercial television broadcasting service in a licence area that is not a remote licence area, if the service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(8).

(5) Subclauses (1), (2) and (3) do not apply to a commercial television broadcasting licence if an election under subclause 6(5A) or (5AA) is in force for a commercial television broadcasting service provided under the licence.

Note 1: For high‑definition television program, see clause 37L.

Note 2: For prime viewing hours, see clause 37M.

37F Non‑remote areas—HDTV quotas for national broadcasters

(1) During the HDTV quota period for a national broadcaster, the national broadcaster must transmit at least the HDTV quota of high‑definition television programs in HDTV digital mode on a designated HDTV multi‑channelled national television broadcasting service provided by the broadcaster in the coverage area.

(2) For the purposes of subclause (1), the HDTV quota period for a national broadcaster is the period:

(a) beginning at the start of 1 January 2007; and

(b) ending after the end of the simulcast period, or the simulcast‑equivalent period, for the coverage area concerned.

(2A) For the purposes of subclause (1), the HDTV quota for a calendar year, or a part of a calendar year, included in the HDTV quota period is as follows:

(a) for a calendar year—1040 hours;

(b) for a part of a calendar year—1040 hours reduced on a pro‑rata basis.

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 a designated HDTV multi‑channelled national television broadcasting service.

Application

(4) Subclauses (1), (2) and (3) apply in relation to the transmission of a designated HDTV multi‑channelled national television broadcasting service in a coverage area that is not a remote coverage area, if the service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 23(8).

Note 1: For high‑definition television program, see clause 37L.

Note 2: For prime viewing hours, see clause 37M.

37G Remote areas—HDTV quotas for commercial television broadcasting licensees

(1) The regulations may determine standards that require each commercial television broadcasting licensee 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 multi‑channelled commercial television broadcasting service provided by the licensee in the licence area.

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 multi‑channelled commercial television broadcasting service provided by the licensee in the licence area.

Application

(3) Subclauses (1) and (2) apply in relation to the transmission of a HDTV multi‑channelled commercial television broadcasting service in a remote licence area, if the service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 8(10A).

(4) Subclauses (1) and (2) do not apply to a licence if:

(a) the licensee provides an exempt remote area service under the licence; and

(b) an election under subclause 6(7B) is in force for the service.

(5) If there is a simulcast period for the licence area of a commercial television broadcasting licence, subclauses (1) and (2) cease to apply to the licence at the end of that period.

(6) If there is a simulcast‑equivalent period for the licence area of a commercial television broadcasting licence, subclauses (1) and (2) cease to apply to the licence at the end of that period.

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 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 a designated HDTV multi‑channelled national television broadcasting service provided by the broadcaster in a coverage area.

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 a designated HDTV multi‑channelled national television broadcasting service.

Application

(3) Subclauses (1) and (2) apply in relation to the transmission of a designated HDTV multi‑channelled national television broadcasting service in a remote coverage area, if the service is not transmitted using a transmitter operated under the authority of a transmitter licence issued as mentioned in subclause 23(10A).

(4) If there is a simulcast period for a coverage area, subclauses (1) and (2) cease to apply to the coverage area at the end of that period.

(5) If there is a simulcast‑equivalent period for a coverage area, subclauses (1) and (2) cease to apply to the coverage area at the end of that period.

Note 1: For high‑definition television program, see clause 37L.

Note 2: For prime viewing hours, see clause 37M.

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, or incidental material, to the extent that it was originally produced in a high‑definition digital video format; or

(b) a television program, or incidental material, to the extent that:

(i) it 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) it 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) incidental material not covered by paragraph (a) or (b) that is transmitted during breaks in so much of a television program as satisfies the requirements of paragraph (a) or (b).

(2) For the purposes of the application of this Division to a national broadcaster, a high‑definition television program is:

(a) a television program, or incidental material, to the extent that it was originally produced in a high‑definition digital video format; or

(b) a television program, or incidental material, to the extent that:

(i) it 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) it has been converted to a high‑definition digital video format;

where the conversion has not resulted in a significant reduction in picture quality; or

(i) it was originally produced in a standard definition digital video format; and

(ii) it has been converted to a high‑definition digital video format; or

(d) a television program, or incidental material, to the extent that:

(i) it was originally produced in an analog video format; and

(ii) it has been converted to a standard definition digital video format;

where the converted program or material was subsequently converted to a high‑definition digital video format; or

(e) incidental material not covered by paragraph (a), (b), (c) or (d) that is transmitted during breaks in so much of a television program as satisfies the requirements of paragraph (a), (b), (c) or (d).

(3) If material (the archival material) included in a television program or in incidental material satisfies the following criteria:

(a) the archival material was originally produced:

(i) before 1 July 2003; or

(ii) if another day is determined in writing by the Minister in relation to a class of television programs or incidental material that includes the television program or incidental material concerned—before that other day;

(b) the archival material would, apart from this subclause, prevent the part of the television program or incidental material which includes the archival material from satisfying the requirements of paragraph (1)(a) or (b) or (2)(a), (b), (c) or (d) (as the case may be);

(c) the archival material, taken together with any other material to which paragraphs (a) and (b) apply and that is also included in the same television program or incidental material, amounts to an insubstantial proportion of the television program or incidental material;

that part of the television program or incidental material is taken to satisfy the requirements of paragraph (1)(a) or (b) or (2)(a), (b), (c) or (d) (as the case may be).

(4) The following provisions apply to determinations of a day under subparagraph (3)(a)(ii):

(a) a day so determined may be a specified day, or a day that is identified in some other way (for example, the day occurring a specified period before first transmission);

(b) the Minister must not make a determination that would result in a day so determined being earlier than 1 July 2003.

(5) A determination under subparagraph (3)(a)(ii) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(6) In this clause:

incidental material means:

(a) advertising or sponsorship material (whether or not of a commercial kind); or

(b) a promotion for a television program or a television broadcasting service; or

(d) a news break or weather bulletin; or

(e) any other similar material.

television program does not include incidental material (whether transmitted during or between television programs).

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

38 Captioning [see Note 2]

Basic rules

(1) Subject to this clause, each commercial television broadcasting licensee, and each national broadcaster, must provide a captioning service for:

(a) television programs transmitted during prime viewing hours; and

(b) television news or current affairs programs transmitted outside prime viewing hours.

Note: For compliance by licensees, see clause 7 of Schedule 2.

(2) Subclause (1) does not require the provision by a commercial television broadcasting licensee of a captioning service for a television program covered by paragraph 6(8)(d).

(3) Subclause (1) does not require the provision by a national broadcaster of a captioning service for a television program covered by paragraph 19(8)(d).

(4) If:

(a) a commercial television broadcasting licence is in force; and

(aa) the licence was not allocated under section 38C; and

(b) the licensee provides a core/primary commercial television broadcasting service in the licence area; and

(i) a SDTV multi‑channelled commercial television broadcasting service; or

(ii) a HDTV multi‑channelled commercial television broadcasting service;

in the licence area;

then, before the end of the final digital television switch‑over day, subclause (1) does not require the provision of a captioning service for a television program transmitted on:

(d) the SDTV multi‑channelled commercial television broadcasting service; or

(e) the HDTV multi‑channelled commercial television broadcasting service;

unless the program has been previously transmitted on the core/primary commercial television broadcasting service.

(4A) If:

(a) subsection 41B(2), (2C) or (2CB) applies to a commercial television broadcasting licence; and

(b) there is a simulcast period for the licence area of the licence; and

(c) the licensee provides a SDTV multi‑channelled commercial television broadcasting service that is the licensee’s primary commercial television broadcasting service; and

(d) the licensee provides:

(i) another SDTV multi‑channelled commercial television broadcasting service; or

(ii) a HDTV multi‑channelled commercial television broadcasting service;

then, before the end of the final digital television switch‑over day, subclause (1) does not require the provision of a captioning service for a television program transmitted on:

(e) the other SDTV multi‑channelled commercial television broadcasting service; or

(f) the HDTV multi‑channelled commercial television broadcasting service;

unless the program has been previously transmitted on the primary commercial television broadcasting service.

(4B) If:

(a) a commercial television broadcasting licence is allocated under section 38C; and

(b) the licensee provides a primary commercial television broadcasting service in the licence area; and

(i) another SDTV multi‑channelled commercial television broadcasting service; or

(ii) a HDTV multi‑channelled commercial television broadcasting service;

then, before the end of the final digital television switch‑over day, subclause (1) does not require the provision of a captioning service for a television program transmitted on:

(d) the other SDTV multi‑channelled commercial television broadcasting service; or

(e) the HDTV multi‑channelled commercial television broadcasting service;

unless the program has been previously transmitted on the primary commercial television broadcasting service.

(5) If:

(a) a national broadcaster provides a national television broadcasting service in a coverage area; and

(b) the service is not provided with the use of a satellite;

then, before the end of the final digital television switch‑over day, subclause (1) does not require the provision of a captioning service for a television program transmitted on:

(c) a SDTV national television broadcasting service provided by the national broadcaster otherwise than with the use of a satellite; or

(d) a HDTV national television broadcasting service provided by the national broadcaster otherwise than with the use of a satellite;

unless:

(e) during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the coverage area, the television program was previously transmitted by the national broadcaster on the national television broadcasting service that is:

(i) provided by the national broadcaster; and

(ii) the service to which clause 19 applies; or

(f) after the end of the simulcast period, or the simulcast‑equivalent period, as the case may be, for the coverage area, the television program was previously transmitted by the national broadcaster on the primary national television broadcasting service provided by the national broadcaster.

(5A) If:

(a) a national broadcaster provides a national television broadcasting service in a satellite delivery area; and

(b) the service is provided with the use of a satellite;

then, before the end of the final digital television switch‑over day, subclause (1) does not require the provision of a captioning service for a television program transmitted on:

(c) a SDTV multi‑channelled national television broadcasting service provided by the national broadcaster with the use of a satellite; or

(d) a HDTV multi‑channelled national television broadcasting service provided by the national broadcaster with the use of a satellite;

unless the television program has been previously transmitted by the national broadcaster on the broadcaster’s primary satellite national television broadcasting service.

(6) Subclause (1) does not require the provision of a captioning service by the licensee of a commercial television broadcasting licence that was allocated under subsection 40(1) during:

(a) the first year of operation of the licence; or

(b) if the ACMA, by written notice given to the licensee, allows a longer period—that longer period.

(7) Subclause (1) does 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

(8) For the purposes of paragraphs (7)(a) and (b), disregard minor and infrequent uses of the English language.

Special rules

(9) If:

(a) a commercial television broadcasting licence is in force; and

(aa) the licence was not allocated under section 38C; and

(b) before the end of the final digital television switch‑over day, the licensee transmits a television program on:

(i) a SDTV multi‑channelled commercial television broadcasting service; or

(ii) a HDTV multi‑channelled commercial television broadcasting service;

in the licence area; and

(c) the program has been previously transmitted on another commercial television broadcasting service provided by the licensee in the licence area; and

(d) the licensee provided a captioning service for the program when the program was so previously transmitted on the other service;

the licensee must provide a captioning service for the television program transmitted as mentioned in paragraph (b).

(9A) If:

(a) a commercial television broadcasting licence is allocated under section 38C; and

(b) before the end of the final digital television switch‑over day, the licensee transmits a television program on:

(i) a SDTV multi‑channelled commercial television broadcasting service; or

(ii) a HDTV multi‑channelled commercial television broadcasting service;

in the licence area; and

(c) the program has been previously transmitted on another commercial television broadcasting service provided by the licensee in the licence area; and

(d) the licensee provided a captioning service for the program when the program was so previously transmitted on the other service;

the licensee must provide a captioning service for the television program transmitted as mentioned in paragraph (b).

(10) If:

(b) before the end of the final digital television switch‑over day, a national broadcaster transmits a television program on:

(i) a SDTV multi‑channelled national television broadcasting service; or

(ii) a HDTV multi‑channelled national television broadcasting service;

in a coverage area; and

(c) the program has been previously transmitted on another national television broadcasting service provided by the national broadcaster in the coverage area; and

(d) the national broadcaster provided a captioning service for the program when the program was so previously transmitted on the other service;

the national broadcaster must provide a captioning service for the television program transmitted as mentioned in paragraph (b).

(10A) Subclause (10) does not apply to a national television broadcasting service provided with the use of a satellite.

(10B) If:

(a) a national broadcaster transmits a television program on:

(i) a SDTV multi‑channelled national television broadcasting service; or

(ii) a HDTV multi‑channelled national television broadcasting service;

in a satellite delivery area; and

(b) the service mentioned in paragraph (a) is provided with the use of a satellite; and

(d) the program has been previously transmitted on another national television broadcasting service provided by the national broadcaster, with the use of a satellite, in the satellite delivery area; and

(e) the national broadcaster provided a captioning service for the program when the program was so previously transmitted on the other service;

the national broadcaster must provide a captioning service for the television program transmitted as mentioned in paragraph (a).

Prime viewing hours

(11) For the purposes of subclause (1), 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.

Definition

(12) In this clause:

program does not include advertising or sponsorship matter (whether or not of a commercial kind).

SDTV multi‑channelled commercial television broadcasting services

(13) The following provisions do not apply to a commercial television broadcasting licensee before 1 January 2009:

(a) subparagraph (4)(c)(i);

(b) paragraph (4)(d);

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 4A—Restrictions on televising anti‑siphoning events

Division 1—Commercial television broadcasting services

41A SDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events during the simulcast period if there is a core service etc.

Scope

(1) This clause applies to a commercial television broadcasting licensee if:

(a) there is a simulcast period, or a simulcast‑equivalent period, for the licence area of the licence; and

(b) during that period, the licensee provides a core commercial television broadcasting service in the licence area.

Televising the whole of an anti‑siphoning event

(2) During that period, the licensee must not televise on a SDTV multi‑channelled commercial television broadcasting service in the licence area the whole of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the whole of the event on the core commercial television broadcasting service; or

(b) the licensee will televise simultaneously in the licence area the whole of the event on both:

(i) the core commercial television broadcasting service; and

(ii) the SDTV multi‑channelled commercial television broadcasting service.

Televising a part of an anti‑siphoning event

(3) During that period, the licensee must not televise on a SDTV multi‑channelled commercial television broadcasting service in the licence area a part of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the part of the event on the core commercial television broadcasting service; or

(b) the licensee will televise simultaneously in the licence area the part of the event on both:

(i) the core commercial television broadcasting service; and

(ii) the SDTV multi‑channelled commercial television broadcasting service; or

(c) the licensee televises the part of the event in a news or current affairs program broadcast on the SDTV multi‑channelled commercial television broadcasting service.

Note: For anti‑siphoning event, see subsection 6(1).

Licences allocated under section 38C

(4) This clause does not apply in relation to a licence allocated under section 38C.

41B SDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events during the simulcast period if there is a primary service etc.

Scope

(1) This clause applies to a commercial television broadcasting licensee if:

(a) subsection 41B(2), (2C) or (2CB) applies to the licence; and

(b) there is a simulcast period, or a simulcast‑equivalent period, for the licence area of the licence; and

(i) a SDTV multi‑channelled commercial television broadcasting service that is the licensee’s primary commercial television broadcasting service; and

(ii) another SDTV multi‑channelled commercial television broadcasting service (the secondary commercial television broadcasting service).

Televising the whole of an anti‑siphoning event

(2) During that period, the licensee must not televise on the secondary commercial television broadcasting service in the licence area the whole of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the whole of the event on the licensee’s primary commercial television broadcasting service; or

(b) the licensee will televise simultaneously in the licence area the whole of the event on both:

(i) the licensee’s primary commercial television broadcasting service; and

(ii) the secondary commercial television broadcasting service.

Televising a part of an anti‑siphoning event

(3) During that period, the licensee must not televise on the secondary commercial television broadcasting service in the licence area a part of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the part of the event on the licensee’s primary commercial television broadcasting service; or

(b) the licensee will televise simultaneously in the licence area the part of the event on both:

(i) the licensee’s primary commercial television broadcasting service; and

(ii) the secondary commercial television broadcasting service; or

(c) the licensee televises the part of the event in a news or current affairs program broadcast on the secondary commercial television broadcasting service.

Note 1: For primary commercial television broadcasting service, see subclause 41G(1).

Note 2: For anti‑siphoning event, see subsection 6(1).

Licences allocated under section 38C

(4) This clause does not apply in relation to a licence allocated under section 38C.

41C HDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events during the simulcast period if there is a core service etc.

Scope

(1) This clause applies to a commercial television broadcasting licensee if:

(a) there is a simulcast period, or a simulcast‑equivalent period, for the licence area of the licence; and

(b) during that period, the licensee provides a core commercial television broadcasting service in the licence area.

Televising the whole of an anti‑siphoning event

(2) During that period, the licensee must not televise on a HDTV multi‑channelled commercial television broadcasting service in the licence area the whole of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the whole of the event on the core commercial television broadcasting service; or

(b) the licensee will televise simultaneously in the licence area the whole of the event on both:

(i) the core commercial television broadcasting service; and

(ii) the HDTV multi‑channelled commercial television broadcasting service.

Televising a part of an anti‑siphoning event

(3) During that period, the licensee must not televise on a HDTV multi‑channelled commercial television broadcasting service in the licence area a part of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the part of the event on the core commercial television broadcasting service; or

(b) the licensee will televise simultaneously in the licence area the part of the event on both:

(i) the core commercial television broadcasting service; and

(ii) the HDTV multi‑channelled commercial television broadcasting service; or

(c) the licensee televises the part of the event in a news or current affairs program broadcast on the HDTV multi‑channelled commercial television broadcasting service.

Note: For anti‑siphoning event, see subsection 6(1).

Licences allocated under section 38C

(4) This clause does not apply in relation to a licence allocated under section 38C.

41D HDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events during the simulcast period if there is a primary service etc.

Scope

(1) This clause applies to a commercial television broadcasting licensee if:

(a) subsection 41B(2), (2C) or (2CB) applies to the licence; and

(b) there is a simulcast period, or a simulcast‑equivalent period, for the licence area of the licence; and

Televising the whole of an anti‑siphoning event

(2) During that period, the licensee must not televise on a HDTV multi‑channelled commercial television broadcasting service in the licence area the whole of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the whole of the event on the licensee’s primary commercial television broadcasting service; or

(b) the licensee will televise simultaneously in the licence area the whole of the event on both:

(i) the licensee’s primary commercial television broadcasting service; and

(ii) the HDTV multi‑channelled commercial television broadcasting service.

Televising a part of an anti‑siphoning event

(3) During that period, the licensee must not televise on a HDTV multi‑channelled commercial television broadcasting service in the licence area a part of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the part of the event on the licensee’s primary commercial television broadcasting service; or

(b) the licensee will televise simultaneously in the licence area the part of the event on both:

(i) the licensee’s primary commercial television broadcasting service; and

(ii) the HDTV multi‑channelled commercial television broadcasting service; or

(c) the licensee televises the part of the event in a news or current affairs program broadcast on the HDTV multi‑channelled commercial television broadcasting service.

Note 1: For primary commercial television broadcasting service, see subclause 41G(1).

Note 2: For anti‑siphoning event, see subsection 6(1).

Licences allocated under section 38C

(4) This clause does not apply in relation to a licence allocated under section 38C.

41E SDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events after the end of the simulcast period etc.

Scope

(1) This clause applies to a commercial television broadcasting licensee after the end of the simulcast period, or the simulcast‑equivalent period, for the licence area of the licence if the licensee provides:

(a) a SDTV multi‑channelled commercial television broadcasting service that is the licensee’s primary commercial television broadcasting service in the licence area; and

(b) one or more other SDTV multi‑channelled commercial television broadcasting services (the secondary commercial television broadcasting services) in the licence area.

Televising the whole of an anti‑siphoning event

(2) The licensee must not televise on a secondary commercial television broadcasting service in the licence area the whole of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the whole of the event on the licensee’s primary commercial television broadcasting service; or

(b) the licensee will televise simultaneously in the licence area the whole of the event on both:

(i) the licensee’s primary commercial television broadcasting service; and

(ii) the secondary commercial television broadcasting service.

Televising a part of an anti‑siphoning event

(3) The licensee must not televise on a secondary commercial television broadcasting service in the licence area a part of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the part of the event on the licensee’s primary commercial television broadcasting service; or

(b) the licensee will televise simultaneously in the licence area the part of the event on both:

(i) the licensee’s primary commercial television broadcasting service; and

(ii) the secondary commercial television broadcasting service; or

(c) the licensee televises the part of the event in a news or current affairs program broadcast on the secondary commercial television broadcasting service.

Note 1: For primary commercial television broadcasting service, see subclause 41G(2).

Note 2: For anti‑siphoning event, see subsection 6(1).

Licences allocated under section 38C

(4) This clause does not apply in relation to a licence allocated under section 38C.

41F HDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events after the end of the simulcast period etc.

Scope

(1) This clause applies to a commercial television broadcasting licensee after the end of the simulcast period, or the simulcast‑equivalent period, for the licence area of the licence.

Televising the whole of an anti‑siphoning event

(2) The licensee must not televise on a HDTV multi‑channelled commercial television broadcasting service in the licence area the whole of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the whole of the event on the licensee’s primary commercial television broadcasting service; or

(b) the licensee will televise simultaneously in the licence area the whole of the event on both:

(i) the licensee’s primary commercial television broadcasting service; and

(ii) the HDTV multi‑channelled commercial television broadcasting service.

Televising a part of an anti‑siphoning event

(3) The licensee must not televise on a HDTV multi‑channelled commercial television broadcasting service in the licence area a part of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the part of the event on the licensee’s primary commercial television broadcasting service; or

(b) the licensee will televise simultaneously in the licence area the part of the event on both:

(i) the licensee’s primary commercial television broadcasting service; and

(ii) the HDTV multi‑channelled commercial television broadcasting service; or

(c) the licensee televises the part of the event in a news or current affairs program broadcast on the HDTV multi‑channelled commercial television broadcasting service.

Note 1: For primary commercial television broadcasting service, see subclause 41G(2).

Note 2: For anti‑siphoning event, see subsection 6(1).

Licences allocated under section 38C

(4) This clause does not apply in relation to a licence allocated under section 38C.

41FA SDTV multi‑channelled commercial television broadcasting service provided under a section 38C licence—restrictions on televising anti‑siphoning events

Scope

(1) This clause applies to a commercial television broadcasting licensee if:

(a) the licence was allocated under section 38C; and

(b) the licensee provides:

(i) a SDTV multi‑channelled commercial television broadcasting service that is one of the licensee’s primary commercial television broadcasting services in the licence area; and

(ii) one or more SDTV multi‑channelled commercial television broadcasting services that are not the licensee’s primary commercial television broadcasting services (the secondary commercial television broadcasting services) in the licence area.

Televising the whole of an anti‑siphoning event

(2) The licensee must not televise on a secondary commercial television broadcasting service in the licence area the whole of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the whole of the event on one or more of the licensee’s primary commercial television broadcasting services; or

(b) the licensee will televise simultaneously in the licence area the whole of the event on:

(i) one or more of the licensee’s primary commercial television broadcasting services; and

(ii) the secondary commercial television broadcasting service.

Televising a part of an anti‑siphoning event

(3) The licensee must not televise on a secondary commercial television broadcasting service in the licence area a part of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the part of the event on one or more of the licensee’s primary commercial television broadcasting services; or

(b) the licensee will televise simultaneously in the licence area the part of the event on:

(i) one or more of the licensee’s primary commercial television broadcasting service; and

(ii) the secondary commercial television broadcasting service; or

(c) the licensee televises the part of the event in a news or current affairs program broadcast on the secondary commercial television broadcasting service.

Note 1: For primary commercial television broadcasting service, see subclause 41G(3).

Note 2: For anti‑siphoning event, see subsection 6(1).

41FB HDTV multi‑channelled commercial television broadcasting service provided under a section 38C licence—restrictions on televising anti‑siphoning events

Scope

(1) This clause applies to a commercial television broadcasting licensee if the licence was allocated under section 38C.

Televising the whole of an anti‑siphoning event

(2) The licensee must not televise on a HDTV multi‑channelled commercial television broadcasting service in the licence area the whole of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the whole of the event on one or more of the licensee’s primary commercial television broadcasting services; or

(b) the licensee will televise simultaneously in the licence area the whole of the event on:

(i) one or more of the licensee’s primary commercial television broadcasting services; and

(ii) the HDTV multi‑channelled commercial television broadcasting service.

Televising a part of an anti‑siphoning event

(3) The licensee must not televise on a HDTV multi‑channelled commercial television broadcasting service in the licence area a part of an anti‑siphoning event unless:

(a) the licensee has previously televised in the licence area the part of the event on one or more of the licensee’s primary commercial television broadcasting services; or

(b) the licensee will televise simultaneously in the licence area the part of the event on:

(i) one or more of the licensee’s primary commercial television broadcasting services; and

(ii) the HDTV multi‑channelled commercial television broadcasting service; or

(c) the licensee televises the part of the event in a news or current affairs program broadcast on the HDTV multi‑channelled commercial television broadcasting service.

Note 1: For primary commercial television broadcasting service, see subclause 41G(3).

Note 2: For anti‑siphoning event, see subsection 6(1).

41G Primary commercial television broadcasting service

Service provided during the simulcast period etc.

(1) If subsection 41B(2), (2C) or (2CB) applies to a commercial television broadcasting licence, the ACMA may, by legislative instrument, declare that a specified SDTV multi‑channelled commercial television broadcasting service provided by the licensee during the simulcast period, or the simulcast‑equivalent period, for the licence area of the licence is the licensee’s primary commercial television broadcasting service in the licence area.

(1A) The ACMA must ensure that a declaration under subclause (1):

(a) comes into force as soon as practicable after the later of the following:

(i) when the licensee commences to provide a SDTV multi‑channelled commercial television broadcasting service in the licence area;

(ii) the commencement of this subclause; and

(b) is in force at all times during the period:

(i) beginning at the time worked out under paragraph (a); and

(ii) ending at the end of the simulcast period, or simulcast‑equivalent period, for the licence area.

Service provided after the end of the simulcast period etc.

(2) The ACMA may, by legislative instrument, declare that a specified SDTV multi‑channelled commercial television broadcasting service provided by a commercial television broadcasting licensee after the end of the simulcast period, or the simulcast‑equivalent period, for the licence area of the licence is the licensee’s primary commercial television broadcasting service in the licence area.

(3) The ACMA must ensure that a declaration under subclause (2) is in force at all times after the later of the following:

(a) the end of the simulcast‑period, or simulcast equivalent period, for the licence area;

(b) when the licensee commences to provide a SDTV multi‑channelled commercial television broadcasting service in the licence area

Service provided under a section 38C licence

(4) The ACMA may, by legislative instrument, declare that one or more specified SDTV multi‑channelled commercial television broadcasting services provided by a commercial television broadcasting licensee whose licence was allocated under section 38C are the licensee’s primary commercial television broadcasting services in the licence area.

(5) The number of services declared under subclause (4) in relation to a particular licensee must not exceed 3.

(6) The ACMA must ensure that a declaration under subclause (4) is in force at all times on and after the start date for the licence area concerned.

Definition

(7) In this clause:

start date has the same meaning as in clause 7H of Schedule 2.

Division 2—National television broadcasting services

41H SDTV multi‑channelled national television broadcasting service—restrictions on televising anti‑siphoning events during the simulcast period etc.

Scope

(1) This clause applies to a national broadcaster if there is a simulcast period, or a simulcast‑equivalent period, for a coverage area.

Televising the whole of an anti‑siphoning event

(2) During that period, the national broadcaster must not televise on a SDTV multi‑channelled national television broadcasting service in the coverage area the whole of an anti‑siphoning event unless:

(a) the national broadcaster has previously televised in the coverage area the whole of the event on the national television broadcasting service to which clause 19 applies; or

(b) the national broadcaster will televise simultaneously in the coverage area the whole of the event on both:

(i) the national television broadcasting service to which clause 19 applies; and

(ii) the SDTV multi‑channelled national television broadcasting service.

Televising a part of an anti‑siphoning event

(3) During that period, the national broadcaster must not televise on a SDTV multi‑channelled national television broadcasting service in the coverage area a part of an anti‑siphoning event unless:

(a) the national broadcaster has previously televised in the coverage area the part of the event on the national television broadcasting service to which clause 19 applies; or

(b) the national broadcaster will televise simultaneously in the coverage area the part of the event on both:

(i) the national television broadcasting service to which clause 19 applies; and

(ii) the SDTV multi‑channelled national television broadcasting service; or

(c) the national broadcaster televises the part of the event in a news or current affairs program broadcast on the SDTV multi‑channelled national television broadcasting service.

Note: For anti‑siphoning event, see subsection 6(1).

National television broadcasting services provided with the use of a satellite

(4) This clause does not apply in relation to national television broadcasting services provided with the use of a satellite.

41J HDTV multi‑channelled national television broadcasting service—restrictions on televising anti‑siphoning events during the simulcast period etc.

Scope

(1) This clause applies to a national broadcaster if there is a simulcast period, or a simulcast‑equivalent period, for a coverage area.

Televising the whole of an anti‑siphoning event

(2) During that period, the national broadcaster must not televise on a HDTV multi‑channelled national television broadcasting service in the coverage area the whole of an anti‑siphoning event unless:

(a) the national broadcaster has previously televised in the coverage area the whole of the event on the national television broadcasting service to which clause 19 applies; or

(b) the national broadcaster will televise simultaneously in the coverage area the whole of the event on both:

(i) the national television broadcasting service to which clause 19 applies; and

(ii) the HDTV multi‑channelled national television broadcasting service.

Televising a part of an anti‑siphoning event

(3) During that period, the national broadcaster must not televise on a HDTV multi‑channelled national television broadcasting service in the coverage area a part of an anti‑siphoning event unless:

(a) the national broadcaster has previously televised in the coverage area the part of the event on the national television broadcasting service to which clause 19 applies; or

(b) the national broadcaster will televise simultaneously in the coverage area the part of the event on both:

(i) the national television broadcasting service to which clause 19 applies; and

(ii) the HDTV multi‑channelled national television broadcasting service; or

(c) the national broadcaster televises the part of the event in a news or current affairs program broadcast on the HDTV multi‑channelled national television broadcasting service.

Note: For anti‑siphoning event, see subsection 6(1).

National television broadcasting services provided with the use of a satellite

(4) This clause does not apply in relation to national television broadcasting services provided with the use of a satellite.

41K SDTV multi‑channelled national television broadcasting service—restrictions on televising anti‑siphoning events after the end of the simulcast period etc.

Scope

(1) This clause applies to a national broadcaster after the end of the simulcast period, or the simulcast‑equivalent period, for a coverage area if the national broadcaster provides:

(a) a SDTV multi‑channelled national television broadcasting service that is the broadcaster’s primary national television broadcasting service in the coverage area; and

(b) one or more other SDTV multi‑channelled national television broadcasting services (the secondary national television broadcasting services) in the coverage area.

Televising the whole of an anti‑siphoning event

(2) The national broadcaster must not televise on a secondary national television broadcasting service in the coverage area the whole of an anti‑siphoning event unless:

(a) the national broadcaster has previously televised in the coverage area the whole of the event on the broadcaster’s primary national television broadcasting service; or

(b) the national broadcaster will televise simultaneously in the coverage area the whole of the event on both:

(i) the broadcaster’s primary national television broadcasting service; and

(ii) the secondary national television broadcasting service.

Televising a part of an anti‑siphoning event

(3) The national broadcaster must not televise on a secondary national television broadcasting service in the coverage area a part of an anti‑siphoning event unless:

(a) the national broadcaster has previously televised in the coverage area the part of the event on the broadcaster’s primary national television broadcasting service; or

(b) the national broadcaster will televise simultaneously in the coverage area the part of the event on both:

(i) the broadcaster’s primary national television broadcasting service; and

(ii) the secondary national television broadcasting service; or

(c) the national broadcaster televises the part of the event in a news or current affairs program broadcast on the secondary national television broadcasting service.

Note 1: For primary national television broadcasting service, see clause 41M.

Note 2: For anti‑siphoning event, see subsection 6(1).

National television broadcasting services provided with the use of a satellite

(4) This clause does not apply in relation to national television broadcasting services provided with the use of a satellite.

41L HDTV multi‑channelled national television broadcasting service—restrictions on televising anti‑siphoning events after the end of the simulcast period etc.

Scope

(1) This clause applies to a national broadcaster after the end of the simulcast period, or the simulcast‑equivalent period, for a coverage area.

Televising the whole of an anti‑siphoning event

(2) The national broadcaster must not televise on a HDTV multi‑channelled national television broadcasting service in the coverage area the whole of an anti‑siphoning event unless:

(a) the national broadcaster has previously televised in the coverage area the whole of the event on the broadcaster’s primary national television broadcasting service; or

(b) the national broadcaster will televise simultaneously in the coverage area the whole of the event on both:

(i) the broadcaster’s primary national television broadcasting service; and

(ii) the HDTV multi‑channelled national television broadcasting service.

Televising a part of an anti‑siphoning event

(3) The national broadcaster must not televise on a HDTV multi‑channelled national television broadcasting service in the coverage area a part of an anti‑siphoning event unless:

(a) the national broadcaster has previously televised in the coverage area the part of the event on the broadcaster’s primary national television broadcasting service; or

(b) the national broadcaster will televise simultaneously in the coverage area the part of the event on both:

(i) the broadcaster’s primary national television broadcasting service; and

(ii) the HDTV multi‑channelled national television broadcasting service; or

(c) the national broadcaster televises the part of the event in a news or current affairs program broadcast on the HDTV multi‑channelled national television broadcasting service.

Note 1: For primary national television broadcasting service, see clause 41M.

Note 2: For anti‑siphoning event, see subsection 6(1).

National television broadcasting services provided with the use of a satellite

(4) This clause does not apply in relation to national television broadcasting services provided with the use of a satellite.

41LA SDTV multi‑channelled national television broadcasting service provided with the use of a satellite—restrictions on televising anti‑siphoning events

Scope

(1) This clause applies to a national broadcaster if the national broadcaster provides, with the use of a satellite:

(a) a SDTV multi‑channelled national television broadcasting service that is the broadcaster’s primary satellite national television broadcasting service in a satellite delivery area; and

(b) one or more other SDTV multi‑channelled national television broadcasting services (the secondary national television broadcasting services) in the satellite delivery area.

Televising the whole of an anti‑siphoning event

(2) The national broadcaster must not televise on a secondary national television broadcasting service in the satellite delivery area the whole of an anti‑siphoning event unless:

(a) the national broadcaster has previously televised in the satellite delivery area the whole of the event on the broadcaster’s primary satellite national television broadcasting service; or

(b) the national broadcaster will televise simultaneously in the satellite delivery area the whole of the event on both:

(i) the broadcaster’s primary satellite national television broadcasting service; and

(ii) the secondary national television broadcasting service.

Televising a part of an anti‑siphoning event

(3) The national broadcaster must not televise on a secondary national television broadcasting service in the satellite delivery area a part of an anti‑siphoning event unless:

(a) the national broadcaster has previously televised in the satellite delivery area the part of the event on the broadcaster’s primary satellite national television broadcasting service; or

(b) the national broadcaster will televise simultaneously in the satellite delivery area the part of the event on both:

(i) the broadcaster’s primary satellite national television broadcasting service; and

(ii) the secondary national television broadcasting service; or

(c) the national broadcaster televises the part of the event in a news or current affairs program broadcast on the secondary national television broadcasting service.

Note 1: For primary satellite national television broadcasting service, see clause 41N.

Note 2: For anti‑siphoning event, see subsection 6(1).

41LB HDTV multi‑channelled national television broadcasting service provided with the use of a satellite—restrictions on televising anti‑siphoning events

Scope

(1) This clause applies to a national broadcaster if the national broadcaster provides, with the use of a satellite, a HDTV multi‑channelled national television broadcasting service.

Televising the whole of an anti‑siphoning event

(2) The national broadcaster must not televise on the HDTV multi‑channelled national television broadcasting service in a satellite delivery area the whole of an anti‑siphoning event unless:

(a) the national broadcaster has previously televised in the satellite delivery area the whole of the event on the broadcaster’s primary satellite national television broadcasting service; or

(b) the national broadcaster will televise simultaneously in the satellite delivery area the whole of the event on both:

(i) the broadcaster’s primary satellite national television broadcasting service; and

(ii) the HDTV multi‑channelled national television broadcasting service.

Televising a part of an anti‑siphoning event

(3) The national broadcaster must not televise on the HDTV multi‑channelled national television broadcasting service in a satellite delivery area a part of an anti‑siphoning event unless:

(a) the national broadcaster has previously televised in the satellite delivery area the part of the event on the broadcaster’s primary satellite national television broadcasting service; or

(b) the national broadcaster will televise simultaneously in the satellite delivery area the part of the event on both:

(i) the broadcaster’s primary satellite national television broadcasting service; and

(ii) the HDTV multi‑channelled national television broadcasting service; or

(c) the national broadcaster televises the part of the event in a news or current affairs program broadcast on the HDTV multi‑channelled national television broadcasting service.

Note 1: For primary satellite national television broadcasting service, see clause 41N.

Note 2: For anti‑siphoning event, see subsection 6(1).

41M Primary national television broadcasting service

(1) A national broadcaster must, by written notice given to the Minister, declare that a specified SDTV multi‑channelled national television broadcasting service provided by the national broadcaster after the end of the simulcast period, or the simulcast‑equivalent period, for a coverage area is the broadcaster’s primary national television broadcasting service in the coverage area.

(2) The national broadcaster must ensure that a declaration under subclause (1) is in force at all times after the end of the simulcast period, or the simulcast‑equivalent period, for the coverage area concerned.

41N Primary satellite national television broadcasting service

Primary national television broadcasting service

(1) A national broadcaster must, by written notice given to the Minister, declare that a specified SDTV multi‑channelled national television broadcasting service provided by the national broadcaster, with the use of a satellite, in a specified satellite delivery area is the broadcaster’s primary satellite national television broadcasting service in the satellite delivery area.

(2) The national broadcaster must ensure that a declaration under subclause (1):

(a) comes into force as soon as practicable after the national broadcaster commences to provide a SDTV multi‑channelled national television broadcasting service, with the use of a satellite, in the satellite delivery area; and

(b) is in force at all times after that commencement.

Part 5—Transmitter access regime

42 Simplified outline

The following is a simplified outline of this Part:

• The owner or operator of a broadcasting transmission tower or a designated associated facility must provide:

(a) the holder of a commercial television broadcasting licence; or

(b) a national broadcaster;

with access to the tower or facility.

• The owner or operator of a broadcasting transmission tower or a designated associated facility must provide a datacaster with access to the tower or facility.

• The owner or operator of a broadcasting transmission tower must provide:

(a) the holder of a commercial television broadcasting licence; or

(b) a national broadcaster;

with access to the site of the tower.

• The owner or operator of a broadcasting transmission tower must provide a datacaster with access to the site of the tower.

43 Definitions

In this Part:

ACCC means the Australian Competition and Consumer Commission.

commercial television broadcasting licence does not include a commercial television broadcasting licence allocated under section 38C.

datacaster means a person who holds a datacasting transmitter licence.

datacasting transmitter licence does not include an authorisation under section 114 of the Radiocommunications Act 1992.

designated associated facility has the meaning given by clause 43A.

facility includes apparatus, equipment, a structure, a line or an electricity cable or wire.

site means:

(a) land; or

(b) a building on land; or

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;

(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 or services in digital mode; and

(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Datacasting services in digital mode

(3) The owner or operator of a broadcasting transmission tower must, if requested to do so by a datacaster (the access seeker), give the access seeker access to the tower.

(4) The owner or operator of the broadcasting transmission tower is not required to comply with subclause (3) unless:

(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, in connection with the provision of datacasting services in digital mode; and

(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Compliance not technically feasible

(5) The owner or operator of a broadcasting transmission tower is not required to comply with subclause (1) or (3) if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subclause (1) or (3), as the case may be, in relation to that tower is not technically feasible.

(6) In determining whether compliance with subclause (1) or (3) in relation to a tower is technically feasible, the ACMA must have regard to:

(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and

(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and

(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):

(i) changing the configuration or operating parameters of a facility situated on the tower; and

(ii) making alterations to the tower; and

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

Issue of certificate

(7) If the ACMA receives a request to make a decision about the issue of a certificate under subclause (5), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.

45A Access to designated associated facilities

(1) This clause applies to a designated associated facility if the facility is situated on, at, in or under:

(a) a broadcasting transmission tower; or

(b) the site on which a broadcasting transmission tower is situated.

Television broadcasting services in digital mode

(2) The owner or operator of the designated associated facility must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also called the access seeker), give the access seeker access to the facility.

(3) The owner or operator of the designated associated facility is not required to comply with subclause (2) unless:

(a) the access is provided for the sole purpose of enabling the access seeker to use the facility, or a service provided by means of the facility, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service or services in digital mode; and

(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Datacasting services in digital mode

(4) The owner or operator of the designated associated facility must, if requested to do so by a datacaster (the access seeker), give the access seeker access to the facility.

(5) The owner or operator of the designated associated facility is not required to comply with subclause (4) unless:

(a) the access is provided for the sole purpose of enabling the access seeker to use the facility, or a service provided by means of the facility, wholly or principally in connection with the provision of datacasting services in digital mode; and

(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Compliance not technically feasible

(6) The owner or operator of a designated associated facility is not required to comply with subclause (2) or (4) if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subclause (2) or (4), as the case may be, in relation to that facility is not technically feasible.

(7) In determining whether compliance with subclause (2) or (4) in relation to a facility is technically feasible, the ACMA must have regard to:

(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and

(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and

(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):

(i) changing the configuration or operating parameters of a facility situated on the site; and

(ii) making alterations to a facility situated on the site; and

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

Issue of certificate

(8) If the ACMA receives a request to make a decision about the issue of a certificate under subclause (6), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.

Exemptions

(9) The regulations may provide for exemptions from subclauses (2) and (4).

(10) Regulations made for the purposes of subclause (9) may make provision with respect to a matter by conferring on the ACCC a power to make a decision of an administrative character.

46 Access to sites of broadcasting transmission towers

Television broadcasting services in digital mode

(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:

(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:

(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Compliance not technically feasible

(6) In determining whether compliance with subclause (1) or (3) in relation to a site is technically feasible, the ACMA must have regard to:

(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and

(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and

(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):

(i) changing the configuration or operating parameters of a facility situated on the site; and

(ii) making alterations to a facility situated on the site; and

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

Issue of certificate

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

(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 ACMA.

Late payment penalty

(3) The ACMA 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 ACMA to make decisions about the remission of the whole or a part of an amount of late payment penalty.

Payment of charge and late payment penalty

(6) Charge and late payment penalty are payable to the ACMA on behalf of the Commonwealth.

Recovery of charge and penalty

(7) Charge and late payment penalty may be recovered by the ACMA, on behalf of the Commonwealth, as debts due to the Commonwealth.

Payments to the Commonwealth

(8) Amounts received by way of charge or late payment penalty must be paid to the Commonwealth.

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.

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 ACMA; and

(b) the ACMA 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 ACMA, 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 ACMA 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 ACMA; and

(b) the ACMA 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 ACMA, 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 ACMA 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

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 of content and captioning rules applicable to multi‑channelled commercial television broadcasting services

(1) Before 1 January 2010, the Minister must cause to be conducted a review of the following matters:

(a) the operation of Part 9 of this Act and clause 38 of this Schedule, in so far as those provisions apply to:

(i) SDTV multi‑channelled commercial television broadcasting services; and

(ii) HDTV multi‑channelled commercial television broadcasting services;

(b) whether Part 9 of this Act and clause 38 of this Schedule, in so far as those provisions apply to:

(i) SDTV multi‑channelled commercial television broadcasting services; and

(ii) HDTV multi‑channelled commercial television broadcasting services;

should be amended.

(2) The Minister must cause to be prepared a report of a review under subsection (1).

(3) The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the report.

60D Review of content and captioning rules applicable to multi‑channelled television broadcasting services

(1) Before 31 December 2012, the Minister must cause to be conducted a review of the following matters:

(a) the operation of Part 9 of this Act and clause 38 of this Schedule, in so far as those provisions apply to:

(i) SDTV multi‑channelled commercial television broadcasting services; and

(ii) HDTV multi‑channelled commercial television broadcasting services;

(b) whether Part 9 of this Act and clause 38 of this Schedule, in so far as those provisions apply to:

(i) SDTV multi‑channelled commercial television broadcasting services; and

(ii) HDTV multi‑channelled commercial television broadcasting services;

should be amended;

(i) SDTV multi‑channelled national television broadcasting services; and

(ii) HDTV multi‑channelled national television broadcasting services;

(d) whether clause 38 of this Schedule, in so far as that clause applies to:

(i) SDTV multi‑channelled national television broadcasting services; and

(ii) HDTV multi‑channelled national television broadcasting services;

should be amended.

(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 tabled in each House of the Parliament within 15 sitting days of that House after the completion of the report.

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 ACMA 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 ACMA 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 ACMA that exceptional circumstances exist as mentioned in subclause 8(2), (3) or (7) (which deal with surrender of transmitter licences);

(c) a decision 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 ACMA under the national television conversion scheme:

(a) a decision that a national broadcaster has failed to satisfy the ACMA that exceptional circumstances exist as mentioned in subclause 23(2), (3) or (7) (which deal with surrender of transmitter licences);

(b) a decision to issue a replacement transmitter licence to a national broadcaster as mentioned in subclause 23(8) or (10A);

(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 ACMA to issue a certificate under subclause 45(5), 45A(6) or 46(5).

(6) An application under subclause (5) may only be made by the access seeker concerned.

(7) An application may be made to the AAT for a review of a decision of the ACMA to refuse to issue a certificate under subclause 45(5) or 46(5).

(8) An application under subclause (7) may only be made by the owner or operator of the broadcasting transmission tower concerned.

(9) An application may be made to the AAT for a review of a decision of the ACMA to refuse to issue a certificate under subclause 45A(6).

(10) An application under subclause (9) may only be made by the owner or operator of the designated associated facility concerned.

63 Notification of decisions to include notification of reasons and appeal rights

If the ACMA makes a decision that is reviewable under clause 62, the ACMA is to include in the document by which the decision is notified:

(a) a statement setting out the reasons for the decision; and

(b) a statement to the effect that an application may be made to the AAT for a review of the decision.

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

2 Simplified outline

The following is a simplified outline of this Schedule:

• This Schedule sets up a system for regulating certain aspects of the internet industry.

• If the ACMA is satisfied that internet content hosted outside Australia is prohibited content or potential prohibited content, the ACMA must:

(a) if the ACMA considers that the content is of a sufficiently serious nature to warrant referral to a law enforcement agency—notify the content to an Australian police force; and

(b) notify the content to internet service providers so that the providers can deal with the content in accordance with procedures specified in an industry code or industry standard (for example, procedures for the filtering, by technical means, of such content).

• Bodies and associations that represent the internet service provider section of the internet industry may develop industry codes.

• The ACMA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.

• The ACMA may make online provider determinations regulating internet service providers.

3 Definitions

In this Schedule, unless the contrary intention appears:

AAT means the Administrative Appeals Tribunal.

access includes:

(a) access that is subject to a pre‑condition (for example, the use of a password); and

(b) access by way of push technology; and

adult means an individual who is 18 or older.

Australia, when used in a geographical sense, includes all the external Territories.

Australian police force means:

(a) the Australian Federal Police; or

(b) the police force of a State or Territory.

child means an individual who is not an adult.

civil proceeding includes a civil action.

Classification Board means the Classification Board established by the Classification (Publications, Films and Computer Games) Act 1995.

classified means classified under Schedule 7.

computer game has the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995.

data storage device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.

designated notification scheme means a scheme:

(a) in the nature of a scheme for substituted service; and

(b) under which the ACMA is taken, for the purposes of this Schedule, to have notified each internet service provider of a matter or thing.

Note: For example, the ACMA may make matters or things available on the internet (with or without security measures).

film has the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995.

Note: Film is defined broadly in that Act, and includes any form of recording from which a visual image can be produced.

immediate circle has the same meaning as in the Telecommunications Act 1997.

information means information:

(a) whether in the form of text; or

(b) whether in the form of data; or

(d) whether in the form of visual images (animated or otherwise); or

(e) whether in any other form; or

(f) whether in any combination of forms.

internet carriage service means a listed carriage service that enables end‑users to access the internet.

internet content means information that:

(a) is kept on a data storage device; and

(b) is accessed, or available for access, using an internet carriage service;

but does not include:

(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 same meaning as in Schedule 7.

prohibited content has the same meaning as in Schedule 7.

special access‑prevention notice means a notice under clause 47.

standard access‑prevention notice means a notice under paragraph 40(1)(c) of this Schedule.

5 Internet content that consists of a film

For the purposes of this Schedule, in determining whether internet content consists of the entire unmodified contents of a film, disregard any differences between:

(a) the technique used to embody sounds and/or visual images in the film; and

(b) the technique used to embody the sounds and/or visual images in a form in which they can be accessed on the internet.

7 Extended meaning of use

Unless the contrary intention appears, a reference in this Schedule to the use of a thing is a reference to the use of the thing either:

(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 4—Complaints to, and investigations by, the ACMA

Division 1—Making of complaints to the ACMA

23 Complaints about breaches of online provider rules etc.

If a person has reason to believe that an internet service provider:

(a) has contravened a code registered under Part 5 of this Schedule that is applicable to the provider; or

(b) has contravened an online provider rule that is applicable to the provider;

the person may make a complaint to the ACMA about the matter.

24 Form of complaint

(1) A complaint under this Division is to be in writing.

(2) However, the ACMA 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

Division 2—Investigations by the ACMA

26 Investigation of complaints by the ACMA

(1) The ACMA must investigate a complaint under Division 1.

(2) However, the ACMA need not investigate the complaint if:

(a) the ACMA is satisfied that the complaint is:

(i) frivolous; or

(ii) vexatious; or

(iii) not made in good faith; or

(b) the ACMA 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 ACMA must notify the complainant of the results of such an investigation.

(4) The ACMA may terminate such an investigation if it is of the opinion that it does not have sufficient information to conclude the investigation.

27 ACMA may investigate matters on its own initiative

If the ACMA thinks that it is desirable to do so, the ACMA may investigate whether an internet service provider:

(a) has contravened a code registered under Part 5 of this Schedule that is applicable to the provider; or

(b) has contravened an online provider rule that is applicable to the provider.

28 Conduct of investigations

(1) An investigation under this Division is to be conducted as the ACMA thinks fit.

(2) The ACMA 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 ACMA).

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 ACMA in connection with an investigation under this Division.

Division 4—Action to be taken in relation to a complaint about prohibited content hosted outside Australia

40 Action to be taken in relation to a complaint about prohibited content hosted outside Australia

(1) If, in the course of an investigation under Division 2 of Part 3 of Schedule 7, the ACMA is satisfied that internet content hosted outside Australia is prohibited content or potential prohibited content, the ACMA must:

(a) if the ACMA 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 ACMA and the chief (however described) of an Australian police force under which the ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA’s powers to refer other matters to a member of an Australian police force.

41 Deferral of action in order to avoid prejudicing a criminal investigation

(1) If:

(a) in the course of an investigation under Division 2 of Part 3 of Schedule 7, the ACMA is satisfied that internet content hosted outside Australia is prohibited content or potential prohibited content; and

(b) apart from this subclause, the ACMA 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 ACMA 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 ACMA 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 24(1) or (2) of Schedule 7); and

(b) the internet content has been notified to internet service providers as mentioned in paragraph 40(1)(b) of this Schedule; and

(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 ACMA 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 ACMA must notify the withdrawal to internet service providers under the designated notification scheme set out in the code or standard, as the case may be.

44 Revocation of standard access‑prevention notice—reclassification of internet content

(1) If:

(a) internet content has been classified by the Classification Board (otherwise than because of subclause 24(1) or (2) of Schedule 7); and

(b) a standard access‑prevention notice relating to the internet content is applicable to a particular internet service provider; and

(d) as a result of the reclassification, the content ceases to be prohibited content;

the ACMA is taken to have revoked the standard access‑prevention notice.

(2) If a standard access‑prevention notice is revoked under this clause, the ACMA must give the internet service provider concerned a written notice stating that the standard access‑prevention notice has been revoked.

Note: The ACMA 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 ACMA is taken to have revoked the standard access‑prevention notice.

Note: The ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA notifies similar internet content to internet service providers in accordance with subclause (1); and

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 ACMA 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 ACMA 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

the ACMA 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 ACMA 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

50 Application of notifications under this Division

A notification under this Division applies to particular internet content only to the extent to which the content is accessed, or available for access, from a website, or a distinct part of a website, specified in the notification.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

51 ACMA may be taken to have issued access‑prevention notices

(1) Subject to subclause (2), the ACMA may, by written instrument, formulate a scheme:

(a) in the nature of a scheme for substituted service; and

(b) under which the ACMA 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 ACMA 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 ACMA 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 the internet service provider section of the internet industry may develop industry codes.

• Industry codes may be registered by the ACMA.

• Compliance with an industry code is voluntary unless the ACMA directs a particular participant in the internet industry to comply with the code.

• The ACMA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.

• Compliance with industry standards is mandatory.

Division 2—Interpretation

53 Industry codes

For the purposes of this Part, an industry code is a code developed under this Part (whether or not in response to a request under this Part).

54 Industry standards

For the purposes of this Part, an industry standard is a standard determined under this Part.

55 Internet activity

For the purposes of this Part, an internet activity is an activity that consists of supplying an internet carriage service.

56 Section of the internet industry

(1) For the purposes of this Part, a section of the internet industry is to be ascertained in accordance with this clause.

(2) For the purposes of this Part, the group consisting of internet service providers constitutes a section of the internet industry.

57 Participants in a section of the internet industry

For the purposes of this Part, if a person is a member of a group that constitutes a section of the internet industry, the person is a participant in that section of the internet industry.

58 Designated body

(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

(2) The Parliament intends that bodies or associations that the ACMA is satisfied represent the internet service provider section of the internet industry should develop no more than 2 codes (industry codes) that are to apply to participants in that section of the industry in relation to the internet activities of the participants.

(3) The Parliament intends that, for the internet service provider section of the internet industry, one of those industry codes should deal exclusively with the matters set out in subclause 60(2).

60 Matters that must be dealt with by industry codes and industry standards

General matters

(1) The Parliament intends that, for the internet service provider section of the internet industry, there should be:

(a) an industry code or an industry standard that deals with; or

(b) an industry code and an industry standard that together deal with;

each of the following matters:

(c) procedures directed towards the achievement of the objective of ensuring that online accounts are not provided to children without the consent of a parent or responsible adult;

(d) giving parents and responsible adults information about how to supervise and control children’s access to internet content;

(e) procedures to be followed in order to assist parents and responsible adults to supervise and control children’s access to internet content;

(f) procedures to be followed in order to inform producers of internet content about their legal responsibilities in relation to that content;

(g) telling customers about their rights to make complaints under clause 23;

(h) procedures to be followed in order to assist customers to make complaints under clause 23;

(i) procedures to be followed in order to deal with complaints about unsolicited electronic mail that promotes or advertises one or more:

(i) websites; or

(ii) distinct parts of websites;

that enable, or purport to enable, end‑users to access information that is likely to cause offence to a reasonable adult;

(j) subject to subclause (8A), action to be taken to assist in the development and implementation of internet content filtering technologies (including labelling technologies);

(k) subject to subclause (8A), giving customers information about the availability, use and appropriate application of internet content filtering software;

(l) subject to subclause (8A), procedures directed towards the achievement of the objective of ensuring that customers have the option of subscribing to a filtered internet carriage service;

(la) if a determination is in force under subclause (8A) in relation to a device:

(i) procedures to be followed in order to inform the users of such a device of the unavailability of internet content filtering; and

(ii) procedures directed towards the achievement of the objective of ensuring that customers have the option of blocking access to the internet using such a device;

(m) procedures directed towards the achievement of the objective of ensuring that, in the event that a participant in the internet service provider section of the internet industry becomes aware that an internet content host is hosting prohibited content in Australia, the host is told about the prohibited content.

Other matters

(2) The Parliament intends that, for the internet service provider section of the internet industry, there should be:

(a) an industry code or an industry standard that deals with; or

(b) an industry code and an industry standard that together deal with;

each of the following matters:

(d) subject to subclause (8A), procedures to be followed by internet service providers in dealing with internet content notified under paragraph 40(1)(b) of this Schedule or clause 46 (for example, procedures to be followed by a particular class of internet service providers for the filtering, by technical means, of such content).

Designated alternative access‑prevention arrangements

(3) An industry code or an industry standard may provide that an internet service provider is not required to deal with internet content notified under paragraph 40(1)(b) of this Schedule or clause 46 by taking steps to prevent particular end‑users from accessing the content if access by the end‑users is subject to an arrangement that is declared by the code or standard to be a designated alternative access‑prevention arrangement for the purposes of the application of this clause to those end‑users.

(4) An industry code developed by a body or association must not declare that a specified arrangement is a designated alternative access‑prevention arrangement for the purposes of the application of this clause to one or more specified end‑users unless the body or association is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end‑users to prohibited content and potential prohibited content.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(5) An industry standard made by the ACMA 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 ACMA 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:

(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:

(d) the standard is taken to be consistent with subclause (2).

Internet content filtering—devices

(8A) If the Minister is satisfied that internet content filtering is not viable in relation to access to internet content using a particular device (for example, a mobile telephone handset), the Minister may, by legislative instrument, determine that paragraphs (1)(j), (k) and (l) and (2)(d) do not apply in relation to access to internet content using that device.

Clause does not limit matters

(9) This clause does not, by implication, limit the matters that may be dealt with by industry codes and industry standards.

61 Industry codes and industry standards not to deal with certain matters

For the purposes of this Part, an industry code or an industry standard that deals with a particular matter has no effect to the extent (if any) to which the matter is dealt with by:

(a) a code registered, or a standard determined, under Part 6 of the Telecommunications Act 1997; or

(b) the Telecommunications Industry Ombudsman scheme (within the meaning of that Act).

Division 4—Industry codes

62 Registration of industry codes

(1) This clause applies if:

(a) the ACMA 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

(d) the ACMA is satisfied that:

(i) to the extent to which the code deals with one or more matters of substantial relevance to the community—the code provides appropriate community safeguards for that matter or those matters; and

(ii) to the extent to which the code deals with one or more matters that are not of substantial relevance to the community—the code deals with that matter or those matters in an appropriate manner; and

(e) the ACMA is satisfied that, before giving the copy of the code to the ACMA:

(i) the body or association published a draft of the code and invited members of the public to make submissions to the body or association about the draft within a specified period; and

(ii) the body or association gave consideration to any submissions that were received from members of the public within that period; and

(f) the ACMA is satisfied that, before giving the copy of the code to the ACMA:

(i) the body or association published a draft of the code and invited participants in that section of the industry to make submissions to the body or association about the draft within a specified period; and

(ii) the body or association gave consideration to any submissions that were received from participants in that section of the industry within that period; and

(g) the ACMA is satisfied that the designated body has been consulted about the development of the code; and

(i) in a case where the code:

(i) relates to the internet service provider section of the internet industry; and

(ii) does not deal with a matter set out in subclause 60(2);

the code is consistent with subclauses 59(2) and 60(1); and

(j) in a case where the code:

(i) relates to the internet service provider section of the internet industry; and

(ii) deals with a matter set out in subclause 60(2);

the code is consistent with subclauses 59(2) and (3) and 60(2).

Note: Designated body is defined by clause 58.

(2) The ACMA 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 ACMA may request codes

(1) If the ACMA is satisfied that a body or association represents a particular section of the internet industry, the ACMA may, by written notice given to the body or association, request the body or association to:

(a) develop an industry code that applies to participants in that section of the industry and deals with one or more specified matters relating to the internet activities of those participants; and

(b) give the ACMA a copy of the code within the period specified in the notice.

(2) The period specified in a notice under subclause (1) must run for at least 120 days.

(3) The ACMA must not make a request under subclause (1) in relation to a particular section of the internet industry unless the ACMA is satisfied that:

(a) the development of the code is necessary or convenient in order to:

(i) provide appropriate community safeguards; or

(ii) otherwise deal with the performance or conduct of participants in that section of the industry; and

(b) in the absence of the request, it is unlikely that an industry code would be developed within a reasonable period.

(4) The ACMA may vary a notice under 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 ACMA is satisfied that a particular section of the internet industry is not represented by a body or association, the ACMA may publish a notice in the Gazette:

(a) stating that, if such a body or association were to come into existence within a specified period, the ACMA would be likely to give a notice to that body or association under 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 ACMA 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 ACMA 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 ACMA may issue a formal warning if the person contravenes an industry code registered under this Part.

Division 5—Industry standards

68 ACMA may determine an industry standard if a request for an industry code is not complied with

(1) This clause applies if:

(a) the ACMA 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 ACMA subsequently refuses to register the code; and

(i) provide appropriate community safeguards in relation to that matter or those matters; or

(ii) otherwise regulate adequately participants in that section of the industry in relation to that matter or those matters.

(2) The ACMA may, by 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 ACMA 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 ACMA a written direction as to the exercise of its powers under this clause.

69 ACMA may determine industry standard where no industry body or association formed

(1) This clause applies if:

(a) the ACMA is satisfied that a particular section of the internet industry is not represented by a body or association; and

(b) the ACMA has published a notice under subclause 64(1) relating to that section of the industry; and

(i) states that, if such a body or association were to come into existence within a particular period, the ACMA would be likely to give a notice to that body or association under 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 ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard in order to:

(i) provide appropriate community safeguards in relation to that matter or those matters; or

(ii) otherwise regulate adequately participants in that section of the industry in relation to that matter or those matters.

(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 ACMA a written direction as to the exercise of its powers under this clause.

70 ACMA 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 ACMA is satisfied that the code is totally deficient (as defined by subclause (7)); and

(c) the ACMA has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period; and

(d) that period ends and the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard that applies to participants in that section of the industry and deals with that matter or those matters.

(2) The period specified in a notice under paragraph (1)(c) must run for at least 30 days.

(3) The ACMA may, by 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 ACMA is satisfied that a body or association represents that section of the industry, the ACMA must consult the body or association before determining an industry standard under 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 ACMA a written direction as to the exercise of its powers under this clause.

71 ACMA 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 ACMA 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 ACMA has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period; and

(e) that period ends and the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard that applies to participants in that section of the industry and deals with the deficient matter or deficient matters.

(2) The period specified in a notice under paragraph (1)(c) must run for at least 30 days.

(3) The ACMA 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.

(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 ACMA 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 ACMA may issue a formal warning if the person contravenes an industry standard registered under this Part.

74 Variation of industry standards

(1) The ACMA 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 ACMA 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 ACMA must:

(a) cause to be published in a newspaper circulating in each State a notice:

(i) stating that the ACMA has prepared a draft of the industry standard or variation; and

(ii) stating that free copies of the draft will be made available to members of the public during normal office hours throughout the period specified in the notice; and

(iii) specifying the place or places where the copies will be available; and

(iv) inviting interested persons to give written comments about the draft to the ACMA within the period specified under subparagraph (ii); and

(b) make copies of the draft available in accordance with the notice.

(2) The period specified under subparagraph (1)(a)(ii) must run for at least 30 days after the publication of the notice.

(3) 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 ACMA 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 ACMA must consult the designated body.

(2) Before revoking an industry standard under subclause 75(1), the ACMA must consult the designated body.

Note: Designated body is defined by clause 58.

Division 6—Register of industry codes and industry standards

78 ACMA to maintain Register of industry codes and industry standards

(1) The ACMA is to maintain a Register in which the ACMA includes:

(a) all industry codes required to be registered under this Part; and

(b) all industry standards; and

(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:

(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 ACMA may make a written determination setting out rules that apply to internet service providers in relation to the supply of internet carriage services.

(3) A determination under subclause (1) is called an online provider determination.

(4) An online provider determination has effect only to the extent that:

(a) it is authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution); or

(b) both:

(i) it is authorised by section 122 of the Constitution; and

(ii) it would have been authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution) if section 51 of the Constitution extended to the Territories.

(5) The ACMA must not make an online provider determination unless the determination relates to a matter specified in the regulations.

(6) The ACMA 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 ACMA 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 is exempt from online provider determinations.

(2) The Minister may, by written instrument, determine that a specified internet service provider is exempt from a specified online provider determination.

(3) A determination under this clause may be unconditional or subject to such conditions (if any) as are specified in the determination.

(4) A determination under this clause has effect accordingly.

(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

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 has contravened, or is contravening, an online provider rule.

(2) The ACMA may give the provider a written direction requiring the provider to take specified action directed towards ensuring that the provider does not contravene the rule, or is unlikely to contravene the rule, in the future.

(3) The following are examples of the kinds of direction that may be given to an internet service provider under subclause (2):

(a) a direction that the provider implement effective administrative systems for monitoring compliance with an online provider rule;

(b) a direction that the provider implement a system designed to give the provider’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of an online provider rule, in so far as those requirements affect the employees, agents or contractors concerned.

(4) A person 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

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 ACMA may issue a formal warning if a person contravenes an online provider rule.

85 Federal Court may order a person to cease supplying internet carriage services

(1) If the ACMA is satisfied that a person who is an internet service provider is supplying an internet carriage service otherwise than in accordance with an online provider rule, the ACMA may apply to the Federal Court for an order that the person cease supplying that internet carriage service.

(2) If the Federal Court is satisfied, on such an application, that the person is supplying an internet carriage service otherwise than in accordance with the online provider rule, the Federal Court may order the person to cease supplying that internet carriage service.

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

(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.

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

(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 ACMA:

(e) a decision to give an internet service provider a standard access‑prevention notice;

(f) a decision to give an internet service provider a special access‑prevention notice;

(g) a decision under clause 66 or 83 to:

(i) give a direction to an internet service provider; or

(ii) vary a direction that is applicable to an internet service provider; or

(iii) refuse to revoke a direction that is applicable to an internet service provider;

(h) a decision of a kind referred to in subclause 80(7) (which deals with decisions under online provider determinations), where the decision relates to an internet service provider.

(2) An application under subclause (1) may only be made by the internet service provider concerned.

(3) An application may be made to the AAT for a review of a decision of the ACMA 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 ACMA makes a decision that is reviewable under clause 92, the ACMA is to include in the document by which the decision is notified:

(a) a statement setting out the reasons for the decision; and

(b) a statement to the effect that an application may be made to the AAT for a review of the decision.

Part 11—Miscellaneous

94 Additional ACMA functions

The ACMA 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;

(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.