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Broadcasting Services Act 1992

  • - C2010C00245
  • In force - Superseded Version
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Act No. 110 of 1992 as amended, taking into account amendments up to Act No. 8 of 2010
An Act relating to broadcasting services, datacasting services, online services and content services, and for related purposes
Administered by: Broadband, Communications and the Digital Economy
Registered 01 Apr 2010
Start Date 01 Mar 2010
End Date 29 Jun 2010
Table of contents.
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Collapse Volume 1Volume 1
Collapse Part 1—PreliminaryPart 1—Preliminary
1 Short title [see Note 1]
2 Commencement [see Note 1]
3 Objects of this Act
4 Regulatory policy
5 Role of the ACMA
6 Interpretation
7 Interpretation—meaning of control
8 Interpretation—shareholding interests, voting interests, dividend interests and winding-up interests
8A Captioning taken to be part of program
8AA Designated community radio broadcasting licence
8AB Digital program enhancement content taken to be a radio program
8AC Digital radio start-up day
8AD Deemed radio broadcasting licence areas
8B Remote Indigenous community
9 Act to bind the Crown
10 Extension of Act to the external Territories
10A Application of the Criminal Code
Expand Part 2—Categories of broadcasting servicesPart 2—Categories of broadcasting services
Expand Part 3—Planning of the broadcasting services bandsPart 3—Planning of the broadcasting services bands
Expand Part 4—Commercial television broadcasting licences and commercial radio broadcasting licencesPart 4—Commercial television broadcasting licences and commercial radio broadcasting licences
Expand Part 5—Control of commercial broadcasting licences and datacasting transmitter licencesPart 5—Control of commercial broadcasting licences and datacasting transmitter licences
Expand Part 6—Community broadcasting licencesPart 6—Community broadcasting licences
Expand Part 6A—Temporary community broadcasting licencesPart 6A—Temporary community broadcasting licences
Expand Part 7—Subscription television broadcasting servicesPart 7—Subscription television broadcasting services
Expand Part 8—Subscription broadcasting and narrowcasting class licencesPart 8—Subscription broadcasting and narrowcasting class licences
Expand Part 8A—Restrictions on subscription television broadcasting services in regional areas etc.Part 8A—Restrictions on subscription television broadcasting services in regional areas etc.
Expand Part 8B—International broadcasting licencesPart 8B—International broadcasting licences
Expand Part 9—Program standardsPart 9—Program standards
Expand Part 9A—Technical standardsPart 9A—Technical standards
Expand Part 9B—Industry codes and industry standardsPart 9B—Industry codes and industry standards
Expand Part 10—Remedies for breaches of licensing provisionsPart 10—Remedies for breaches of licensing provisions
Expand Part 10A—Anti-hoarding rulesPart 10A—Anti-hoarding rules
Expand Part 11—Complaints to the ACMAPart 11—Complaints to the ACMA
Expand Part 13—Information gathering by the ACMAPart 13—Information gathering by the ACMA
Expand Part 14—Appeals to the Administrative Appeals TribunalPart 14—Appeals to the Administrative Appeals Tribunal
Expand Part 14A—Accounts and payment of licence feesPart 14A—Accounts and payment of licence fees
Expand Part 14B—Civil penaltiesPart 14B—Civil penalties
Expand Part 14C—InjunctionsPart 14C—Injunctions
Expand Part 14D—Enforceable undertakingsPart 14D—Enforceable undertakings
Expand Part 14E—Infringement noticesPart 14E—Infringement notices
Expand Part 15—MiscellaneousPart 15—Miscellaneous
Schedule 1—Control and ownership of company interests
Expand Part 1—IntroductionPart 1—Introduction
Expand Part 2—When person is in a position to exercise controlPart 2—When person is in a position to exercise control
Expand Part 3—Deemed controlPart 3—Deemed control
Expand Part 4—Tracing of ownershipPart 4—Tracing of ownership
Schedule 2—Standard conditions
Expand Part 1—InterpretationPart 1—Interpretation
Expand Part 2—Special conditionsPart 2—Special conditions
Expand Part 3—Commercial television broadcasting licencesPart 3—Commercial television broadcasting licences
Expand Part 4—Commercial radio broadcasting licencesPart 4—Commercial radio broadcasting licences
Expand Part 5—Community broadcasting licencesPart 5—Community broadcasting licences
Expand Part 6—Subscription television broadcasting licencesPart 6—Subscription television broadcasting licences
Expand Part 7—Services provided under class licencesPart 7—Services provided under class licences
Expand Volume 2Volume 2

Broadcasting Services Act 1992

Act No. 110 of 1992 as amended

This compilation was prepared on 24 March 2010
taking into account amendments up to Act No. 8 of 2010

Volume 1 includes:     Table of Contents
                                    Sections 1 – 218
                                    Schedules 1 and 2

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Volume 2 includes:     Table of Contents
                                    Schedules 4 – 7
                                    Note 1
                                    Table of Acts
                                    Act Notes
                                    Table of Amendments
                                    Table A

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

 

 

 


Contents

Part 1—Preliminary                                                                                                             1

1............ Short title [see Note 1]........................................................................ 1

2............ Commencement [see Note 1].............................................................. 1

3............ Objects of this Act.............................................................................. 1

4............ Regulatory policy................................................................................ 3

5............ Role of the ACMA............................................................................. 5

6............ Interpretation....................................................................................... 5

7............ Interpretation—meaning of control................................................... 17

8............ Interpretation—shareholding interests, voting interests, dividend interests and winding‑up interests      17

8A......... Captioning taken to be part of program............................................. 18

8AA...... Designated community radio broadcasting licence............................ 19

8AB...... Digital program enhancement content taken to be a radio program... 19

8AC...... Digital radio start‑up day................................................................... 20

8AD...... Deemed radio broadcasting licence areas.......................................... 22

8B......... Remote Indigenous community......................................................... 23

9............ Act to bind the Crown....................................................................... 23

10.......... Extension of Act to the external Territories....................................... 24

10A....... Application of the Criminal Code..................................................... 24

Part 2—Categories of broadcasting services                                                       25

11.......... Categories of broadcasting services.................................................. 25

11A....... Dual categorisation of international broadcasting services................ 25

12.......... Method of regulating particular services........................................... 25

13.......... National broadcasting services.......................................................... 26

14.......... Commercial broadcasting services.................................................... 27

15.......... Community broadcasting services..................................................... 27

16.......... Subscription broadcasting services................................................... 27

17.......... Subscription narrowcasting services................................................. 28

18.......... Open narrowcasting services............................................................ 28

18A....... International broadcasting services.................................................... 29

19.......... ACMA may determine additional criteria or clarify existing criteria. 30

20.......... Determinations and clarifications to be disallowable by the Parliament 31

21.......... Requests to ACMA to decide which category a broadcasting service falls into       31

22.......... Matters to be considered by ACMA................................................. 32

Part 3—Planning of the broadcasting services bands                                   34

23.......... Planning criteria................................................................................ 34

24.......... ACMA to determine priorities.......................................................... 34

25.......... Preparation of frequency allotment plans.......................................... 35

26.......... Preparation of licence area plans....................................................... 36

26A....... Licence area plans—multi‑channelled commercial television broadcasting services 36

26B....... Licence area plans—multi‑channelled national television broadcasting services       37

26C....... Licence area plans not required to deal with certain digital radio broadcasting services            38

26D....... Licence area plans—how digital radio broadcasting services may be dealt with       39

27.......... Processes to be public....................................................................... 39

29.......... Designation of licence areas.............................................................. 40

30.......... ACMA may determine population figures........................................ 40

31.......... Minister may reserve capacity for national broadcasters or community broadcasters               40

32.......... Reservations to be disallowable by the Parliament............................ 41

33.......... Development of technical planning guidelines.................................. 41

34.......... Alternative uses of broadcasting services bands............................... 41

35.......... Notification of decisions under this Part........................................... 43

Part 4—Commercial television broadcasting licences and commercial radio broadcasting licences      44

35A....... Reviews about the allocation of new commercial television broadcasting licences   44

35B....... Allocation of new commercial television broadcasting
licences
.............................................................................................. 45

35C....... Digital radio moratorium................................................................... 46

35D....... Exception to the digital radio moratorium—failure to provide a digital commercial radio broadcasting service        46

36.......... ACMA to determine system for allocating licences.......................... 47

36A....... Commercial radio broadcasting licences to provide analog or digital commercial radio broadcasting services         48

37.......... When licences must not be allocated................................................. 49

38.......... ACMA to advertise for applications for certain licences................... 50

38A....... Additional commercial television licences in single markets............. 50

38B....... Additional commercial television licences in 2‑station markets......... 52

39.......... Additional commercial radio licences in single markets.................... 58

40.......... Allocation of other licences............................................................... 61

41.......... When persons are regarded as suitable.............................................. 63

41A....... Services authorised by commercial television broadcasting licences before 1 January 2009    64

41B....... Services authorised by commercial television broadcasting licences during so much of the simulcast period etc. as occurs on or after 1 January 2009................................................................ 65

41C....... Services authorised by commercial television broadcasting licences after the end of the simulcast period etc.         67

41D....... Services authorised by commercial radio broadcasting
licences
.............................................................................................. 68

42.......... Conditions of commercial broadcasting licences............................... 70

43.......... ACMA may impose additional conditions........................................ 70

43A....... Material of local significance—regional aggregated commercial television broadcasting licences            71

43B....... Local presence—regional commercial radio broadcasting licences.... 72

43C....... Local content—regional commercial radio broadcasting licences...... 73

43D....... Special licence conditions relating to digital radio commercial broadcasting services               75

44.......... Matters to which conditions may relate............................................. 78

45.......... Duration of licences.......................................................................... 78

46.......... Applications for renewal................................................................... 78

47.......... ACMA to renew licences unless it is aware of special circumstances 79

48.......... Transfer of commercial broadcasting licences................................... 79

49.......... Surrender of commercial broadcasting licences................................. 79

Part 5—Control of commercial broadcasting licences and datacasting transmitter licences       80

Division 1—Preliminary                                                                                            80

50A....... This Part does not apply in relation to licences allocated under subsection 40(1)     80

50.......... Interpretation—knowledge of company............................................ 80

51.......... Means of dealing with overlapping licence areas.............................. 80

51A....... This Part does not apply to certain channel B datacasting transmitter licences          80

52.......... Changes in licence area populations not to put persons in breach of this Part          81

52A....... Newspapers—additional constitutional basis.................................... 81

Division 2—Limitation on control                                                                       82

Subdivision A—Commercial broadcasting licences                                       82

53.......... Limitation on control of commercial television broadcasting licences 82

54.......... Limitation on control of commercial radio broadcasting licences...... 82

Subdivision B—Commercial television broadcasting licences and datacasting transmitter licences      82

54A....... Limitation on control of commercial television broadcasting licences and datacasting transmitter licences               82

Subdivision C—Commercial radio broadcasting licences and restricted datacasting licences 83

54B....... Limitation on control of commercial radio broadcasting licences and restricted datacasting licences during the digital radio moratorium period............................................................................. 83

Division 3—Limitation on directorships                                                           84

Subdivision A—Television and radio                                                                 84

55.......... Limitation on numbers of directorships—television.......................... 84

56.......... Limitation on numbers of directorships—radio................................. 85

Subdivision B—Television and datacasting                                                      85

56A....... Limitation on directorships—television and datacasting.................... 85

Division 5—Newspapers associated with licence areas                            86

59.......... Newspapers associated with commercial television or radio broadcasting licence areas           86

Division 5A—Media diversity                                                                                88

Subdivision A—Introduction                                                                                 88

61AA.... Definitions........................................................................................ 88

61AB.... Unacceptable media diversity situation.............................................. 90

61AC.... Points................................................................................................ 90

61AD.... Statutory control rules....................................................................... 93

61AE..... Shared content test............................................................................ 93

61AEA.. Unacceptable 3‑way control situation................................................ 94

61AF..... Overlapping licence areas.................................................................. 94

Subdivision B—Prohibition of transactions that result in an unacceptable media diversity situation coming into existence etc.                                                                                 94

61AG.... Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—offence.......................................................................................................... 94

61AH.... Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—civil penalty.......................................................................................................... 95

61AJ..... Prior approval of transactions that result in an unacceptable media diversity situation coming into existence etc.    96

61AK.... Extension of time for compliance with prior approval notice............ 97

61AL..... Breach of prior approval notice—offence......................................... 98

61AM... Breach of prior approval notice—civil penalty.................................. 99

Subdivision BA—Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence etc.                                                                                 99

61AMA Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence—offence  99

61AMB. Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence—civil penalty........................................................................................................ 100

61AMC. Prior approval of transactions that result in an unacceptable 3‑way control situation coming into existence etc.      100

61AMD Extension of time for compliance with prior approval notice.......... 102

61AME. Breach of prior approval notice—offence....................................... 103

61AMF. Breach of prior approval notice—civil penalty................................ 103

Subdivision C—Remedial directions                                                                 103

61AN.... Remedial directions—unacceptable media diversity situation.......... 103

61ANA. Remedial directions—unacceptable 3‑way control situation............ 106

61AP..... Extension of time for compliance with remedial direction............... 108

61AQ.... Breach of remedial direction—offence............................................ 109

61AR.... Breach of remedial direction—civil penalty..................................... 109

Subdivision D—Enforceable undertakings                                                     110

61AS..... Acceptance of undertakings............................................................ 110

61AT..... Enforcement of undertakings.......................................................... 110

Subdivision E—Register of Controlled Media Groups                                111

61AU.... Register of Controlled Media Groups............................................. 111

61AV.... How a media group is to be entered in the Register........................ 111

61AW... Explanatory notes may be included in the Register......................... 112

61AX.... Continuity of media group.............................................................. 112

61AY.... Initial registration of media groups.................................................. 112

61AZ..... Registration of newly‑formed media group..................................... 113

61AZA.. De‑registration of media group that has ceased to exist................... 116

61AZB.. Registration of change of controller of registered media group....... 117

61AZC.. Registration of change of composition of media group................... 117

61AZCAACMA must deal with notifications in order of receipt.................. 118

61AZD.. Conditional transactions.................................................................. 118

61AZE.. Review and confirmation of entries and alterations etc.................... 120

61AZF.. Reconsideration of decisions........................................................... 122

61AZG.. Corrections of clerical errors or obvious defects............................. 124

61AZH.. Regulations..................................................................................... 124

Division 5B—Disclosure of cross‑media relationships                            125

61BA.... Definitions...................................................................................... 125

61BB..... Disclosure of cross‑media relationship by commercial television broadcasting licensee          125

61BC..... Choice of disclosure method—commercial radio broadcasting licensee 127

61BD.... Disclosure of cross‑media relationship by commercial radio broadcasting licensee—business affairs disclosure method........................................................................................................ 128

61BE..... Disclosure of cross‑media relationship by commercial radio broadcasting licensee—regular disclosure method     129

61BF..... Disclosure of cross‑media relationship by publisher of newspaper 130

61BG.... Exception—political communication............................................... 132

61BH.... Matter or material about the business affairs of a broadcasting licensee or newspaper publisher             132

Division 5C—Local news and information requirements for regional commercial radio broadcasting licensees                                                                                                 135

Subdivision A—Introduction                                                                               135

61CA.... Definitions...................................................................................... 135

61CB..... Trigger event................................................................................... 137

61CC..... What is local?.................................................................................. 138

Subdivision B—Minimum service standards for local news and information               138

61CD.... Licensee must meet minimum service standards for local news and information     138

61CE..... Minimum service standards for local news and information........... 139

Subdivision C—Local content plans                                                                  141

61CF..... Licensee must submit draft local content plan to the ACMA.......... 141

61CG.... Content of draft or approved local content plan............................... 142

61CH.... Approval of draft local content plan................................................ 142

61CJ...... Register of approved local content plans......................................... 143

61CK..... Approved local content plan must be varied if minimum service standards are imposed or increased      143

61CL..... Approved local content plan may be varied by the licensee............. 144

61CM.... Approval of draft variation.............................................................. 144

61CN.... ACMA may review approved local content plan............................ 145

61CP..... Compliance with approved local content plan................................. 145

61CPA.. Licensee must submit annual compliance report.............................. 145

61CQ.... Minister may direct the ACMA about the exercise of its powers.... 146

Subdivision D—Other local content requirements                                        146

61CR..... Minister may direct the ACMA to conduct an investigation about other local content requirements        146

61CS..... Minister may direct the ACMA to impose licence conditions relating to local content             147

61CT..... Regular reviews of local content requirements................................ 147

Division 6—Notification provisions                                                                  149

62.......... Requirement to notify control and directorships.............................. 149

63.......... Requirement to notify changes in control........................................ 150

64.......... Person who obtains control of a licence or newspaper must notify the ACMA       152

65.......... Requirement to notify control and directorships as at 1 February 2007 153

65A....... Strict liability offences..................................................................... 155

65B....... Designated infringement notice provisions..................................... 155

Division 7—Approval of temporary breaches                                            156

66.......... Offence for breaches without approval........................................... 156

67.......... Applications for prior approval of temporary breaches................... 157

68.......... Extension of time for compliance with notice.................................. 158

69.......... Breach of notice under section 67 to constitute an offence.............. 159

Division 8—Action by the ACMA                                                                      160

70.......... Notices by the ACMA.................................................................... 160

71.......... Extension of time for compliance with notice.................................. 161

72.......... Breach of notice under section 70 to constitute an offence.............. 162

Division 9—Special provision for small markets                                       163

73.......... Additional licence under section 38A not to result in breach of ownership limits    163

73A....... Additional licence allocated under section 38B not to result in breach of control rules             163

Division 10—Prior opinions by the ACMA                                                  164

74.......... Requests to ACMA to give an opinion on whether a person is in a position to control a licence, a newspaper or a company.......................................................................................... 164

Division 11—Miscellaneous                                                                                   166

75.......... Register of matters under this Part.................................................. 166

76.......... Continuing offences........................................................................ 166

77.......... Part has effect notwithstanding Trade Practices Act........................ 166

78.......... Part not to invalidate appointments.................................................. 167

Part 6—Community broadcasting licences                                                        168

79.......... Interpretation................................................................................... 168

79A....... Application...................................................................................... 168

80.......... ACMA to advertise for applications for BSB community broadcasting licences     168

81.......... When licences must not be allocated............................................... 169

82.......... Other community broadcasting licences.......................................... 169

83.......... When persons are regarded as suitable............................................ 169

84.......... Allocation of community broadcasting licences.............................. 170

84A....... Designated community radio broadcasting licences to provide analog or digital services         171

85.......... ACMA not required to allocate community broadcasting licence to any applicant   172

85A....... Services authorised by designated community radio broadcasting licences              172

86.......... Conditions of community broadcasting licences............................. 174

87.......... ACMA may impose additional conditions on community broadcasting licences     174

87A....... Additional conditions on CTV licences........................................... 175

87B....... Special licence condition relating to digital community radio broadcasting services 177

88.......... Matters to which conditions may relate........................................... 177

89.......... Duration of community broadcasting licences................................. 178

90.......... Applications for renewal of community broadcasting licences........ 178

91.......... ACMA may renew community broadcasting licences.................... 179

91A....... Transfer of community broadcasting licences................................. 180

92.......... Surrender of community broadcasting licences............................... 182

Part 6A—Temporary community broadcasting licences                           183

92A....... Interpretation................................................................................... 183

92B....... Temporary community broadcasting licences.................................. 183

92C....... Applicants for temporary community broadcasting licences........... 183

92D....... When applicants and licensees are regarded as suitable................... 184

92E........ Criteria for deciding whether to allocate a licence............................ 185

92F........ Licences to accord with alternative planning procedures................. 186

92G....... Licence area, timing conditions and licence period.......................... 186

92H....... Conditions of temporary community broadcasting licences............ 186

92J........ ACMA may vary conditions or periods, or impose new conditions 186

92K....... Duration of temporary community broadcasting licences................ 187

92L........ Surrender of temporary community broadcasting licences.............. 188

Part 7—Subscription television broadcasting services                                189

Division 1—Allocation of subscription television broadcasting licences               189

95.......... When subscription television broadcasting licence must not be allocated 189

96.......... Allocation of other subscription television broadcasting licences.... 189

97.......... Requests to Australian Competition and Consumer Commission... 190

98.......... Suitability for allocation of licence.................................................. 190

98D....... Compensation................................................................................. 191

Division 2—Conditions of subscription television broadcasting licence                193

99.......... Conditions applicable to subscription television broadcasting licence 193

100........ Matters to which conditions may relate........................................... 193

Division 2A—Eligible drama expenditure                                                     195

Subdivision A—Introduction                                                                               195

103A..... Simplified outline............................................................................ 195

103B..... Definitions...................................................................................... 196

103C..... Channel providers........................................................................... 199

103D..... Part‑channel providers.................................................................... 199

103E...... Pass‑through providers................................................................... 200

103F...... Part‑pass‑through providers............................................................ 200

103G..... Supply of channel or package......................................................... 201

103H..... Non‑designated pre‑production expenditure not to be counted unless principal photography has commenced        201

103J...... Cash‑based accounting—when expenditure is incurred.................. 201

103JA... When designated script development expenditure is incurred in relation to an eligible drama program etc.              202

103K..... When expenditure incurred on a new eligible drama program......... 204

103L...... ACMA may make determinations about what constitutes program expenditure      205

103M.... Expenditure to be nominated only once in meeting licence conditions 206

Subdivision B—Channel provider supplies channel                                     207

103N..... 10% minimum eligible drama expenditure—channel provider supplies channel      207

103NA.. Carry‑forward eligible drama expenditure....................................... 209

103P...... Shortfall of eligible drama expenditure—channel provider supplies channel exclusively to licensee        209

103Q..... Shortfall of eligible drama expenditure—channel provider supplies channel to multiple licensees           211

Subdivision C—Pass‑through provider supplies channel                            213

103R..... 10% minimum eligible drama expenditure—pass‑through provider supplies channel              213

103RA.. Carry‑forward eligible drama expenditure....................................... 215

103S...... Shortfall of eligible drama expenditure—pass‑through provider supplies channel   216

Subdivision D—Licensee supplies all program material                             217

103T...... 10% minimum eligible drama expenditure—licensee supplies all program material 217

103TA... Carry‑forward eligible drama expenditure....................................... 218

Subdivision E—Part‑channel provider supplies package of programs   219

103U..... 10% minimum eligible drama expenditure—part‑channel provider supplies package of programs          219

103UA.. Carry‑forward eligible drama expenditure....................................... 220

103V..... Shortfall of eligible drama expenditure—part‑channel provider supplies a package of programs exclusively to licensee........................................................................................................ 221

103W.... Shortfall of eligible drama expenditure—part‑channel provider supplies a package of programs to multiple licensees........................................................................................................ 223

Subdivision F—Part‑pass‑through provider supplies package of programs  225

103X..... 10% minimum eligible drama expenditure—part‑pass‑through provider supplies package of programs 225

103XA.. Carry‑forward eligible drama expenditure....................................... 227

103Y..... Shortfall of eligible drama expenditure—part‑pass‑through provider supplies package of programs       228

Subdivision G—Licensee supplies part of program material                    229

103Z...... 10% minimum eligible drama expenditure—licensee supplies part of program material          229

103ZAA Carry‑forward eligible drama expenditure....................................... 231

Subdivision H—Annual returns                                                                          232

103ZA... Licensee to lodge annual return....................................................... 232

103ZB... Channel provider and part‑channel provider to lodge annual return 232

103ZC... ACMA may inquire into the correctness of an annual return.......... 233

103ZD... Nominations to be attached to annual returns.................................. 233

Subdivision I—Compliance certificates                                                           234

103ZE... ACMA to issue compliance certificate............................................ 234

103ZF... Compliance certificate to be prima facie evidence............................ 237

Subdivision J—Miscellaneous                                                                            237

103ZG... Anti‑avoidance—transactions between persons not at arm’s length 237

103ZH... Expenditure to be expressed in Australian currency........................ 237

103ZJ.... Review before 31 March 2003........................................................ 238

Division 6—Miscellaneous                                                                                     239

113........ Transfer of subscription television broadcasting licence................. 239

114........ Surrender of subscription television broadcasting licence............... 239

115........ Minister may protect the free availability of certain types of programs 239

115A..... Review of anti‑siphoning provisions.............................................. 240

116........ Certain arrangements not to result in control or in persons being associates            241

116A..... Use of additional capacity............................................................... 241

116B..... Application of section 51 of the Trade Practices Act....................... 242

Part 8—Subscription broadcasting and narrowcasting class licences 243

117........ Determination of class licences....................................................... 243

118........ Conditions of class licences............................................................ 243

119........ Matters to which conditions may relate........................................... 243

120........ Variation of class licences............................................................... 244

121........ Class licences and variations to be disallowable by the Parliament. 244

Part 8A—Restrictions on subscription television broadcasting services in regional areas etc.   245

121A..... Simplified outline............................................................................ 245

121B..... Definitions...................................................................................... 245

121C..... Identical program items................................................................... 246

121D..... Continuity of program items........................................................... 246

121E...... ACMA permission is required to provide certain television services in regional areas            247

Part 8B—International broadcasting licences                                                  248

Division 1—Introduction                                                                                        248

121F...... Simplified outline............................................................................ 248

121FAA Definitions...................................................................................... 249

Division 2—Allocation of international broadcasting licences           250

121FA... Application for international broadcasting licence........................... 250

121FB... Corporate status and suitability....................................................... 250

121FC... Unsuitable applicant........................................................................ 252

121FD... Australia’s national interest............................................................. 253

121FE... Allocation of licence........................................................................ 254

Division 3—Obligations of international broadcasting licensees      255

121FF... Conditions of international broadcasting licences............................ 255

Division 4—Remedies                                                                                               256

121FG... Prohibition on providing an international broadcasting service without a licence     256

121FH... Remedial directions—unlicensed international broadcasting services 256

121FHA Breach of remedial direction—offence............................................ 256

121FHB Breach of remedial direction—civil penalty provision..................... 257

121FJ.... Offence for breach of conditions of international broadcasting licence 257

121FJA. Civil penalty provision relating to breach of conditions of international broadcasting licences 258

121FJB. Remedial directions—licence conditions......................................... 258

121FJC. Breach of remedial direction—offence............................................ 258

121FJD. Breach of remedial direction—civil penalty provision..................... 259

121FK... Cancellation of licence if service does not commence within 2 years 259

121FL... Formal warning, or cancellation or suspension of licence, where service is contrary to Australia’s national interest........................................................................................................ 260

Division 4A—Nominated broadcaster declarations                                 262

121FLA Object of this Division.................................................................... 262

121FLB. Applications for nominated broadcaster declarations...................... 262

121FLC. Making a nominated broadcaster declaration................................... 262

121FLD Effect of nominated broadcaster declaration.................................... 264

121FLE. Conditions of nominated broadcaster declarations.......................... 265

121FLF. Offence for breach of conditions of nominated broadcaster declaration 265

121FLG Revocation of nominated broadcaster declaration............................ 265

121FLH Cancellation of licence if declaration ceases to be in force and licensee is not an Australian company     267

121FLJ.. Register of nominated broadcaster declarations............................... 268

Division 5—ACMA to assist the Minister for Foreign Affairs           270

121FM.. Report about compliance with international broadcasting guidelines 270

121FN... Records of broadcasts..................................................................... 270

Division 6—Miscellaneous                                                                                     271

121FP... International broadcasting guidelines.............................................. 271

121FQ... Surrender of international broadcasting licences............................. 271

121FR... Complaints about international broadcasting services..................... 271

121FS... Statements about decisions of the Minister for Foreign
Affairs
............................................................................................. 271

Part 9—Program standards                                                                                        273

122........ Program standards for children’s programs and Australian content 273

123........ Development of codes of practice................................................... 274

123A..... Review by the ACMA.................................................................... 278

124........ ACMA to maintain Register of codes of practice............................ 279

125........ ACMA may determine program standards where codes of practice fail or where no code of practice developed    279

126........ Consultation on standards............................................................... 280

127........ Notification of determination or variation or revocation of standards 280

128........ Standards and codes to be amendable by the Parliament................. 280

129........ Limitation of ACMA’s power in relation to standards.................... 281

130........ Application of the Trade Practices Act............................................ 281

Part 9A—Technical standards                                                                                   282

130A..... Technical standards for digital transmission—television etc........... 282

130AA.. Technical standards for digital transmission—radio etc.................. 284

130AB.. Technical standards relating to the operation of multiplex transmitters 285

130B..... Technical standards for domestic digital reception equipment—television etc.         285

130BA.. Technical standards for domestic digital reception equipment—radio etc.                287

Part 9B—Industry codes and industry standards                                         291

Division 1—Simplified outline                                                                              291

130C..... Simplified outline............................................................................ 291

Division 2—Interpretation                                                                                     292

130D..... Industry codes................................................................................. 292

130E...... Industry standards........................................................................... 292

130F...... Industry activities............................................................................ 292

130G..... Sections of the industry................................................................... 294

130H..... Participants in a section of the industry........................................... 294

Division 3—General principles relating to industry codes and industry standards        295

130J...... Statement of regulatory policy......................................................... 295

130K..... Examples of matters that may be dealt with by industry codes and industry standards            295

130L...... Industry codes and industry standards not to deal with certain matters 295

Division 4—Industry codes                                                                                    297

130M.... Registration of industry codes......................................................... 297

130N..... ACMA may request codes.............................................................. 298

130P...... Publication of notice where no body or association represents a section of the industry          299

130Q..... Replacement of industry codes........................................................ 299

Division 5—Industry standards                                                                          300

130R..... ACMA may determine an industry standard if a request for an industry code is not complied with        300

130S...... ACMA may determine industry standard where no industry body or association formed       301

130T...... ACMA may determine industry standards—total failure of industry codes             301

130U..... ACMA may determine industry standards—partial failure of industry codes          303

130V..... Compliance with industry standards............................................... 304

130W.... Formal warnings—breach of industry standards............................ 305

130X..... Variation of industry standards....................................................... 305

130Y..... Revocation of industry standards.................................................... 305

130Z...... Public consultation on industry standards....................................... 305

Division 6—Register of industry codes and industry standards        307

130ZA... ACMA to maintain Register of industry codes and industry standards 307

Part 10—Remedies for breaches of licensing provisions                           308

Division 1—Offences for providing unlicensed services                        308

131........ Prohibition on providing a commercial television broadcasting service without a licence        308

132........ Prohibition on providing a subscription television broadcasting service without a licence       308

133........ Prohibition on providing a commercial radio broadcasting service without a licence               308

134........ Prohibition on providing a community television broadcasting service without a licence         308

135........ Prohibition on providing a community radio broadcasting service without a licence                309

136........ Continuing offences........................................................................ 309

Division 1A—Civil penalty provisions relating to unlicensed services   310

136A..... Prohibition on providing a commercial television broadcasting service without a licence        310

136B..... Prohibition on providing a subscription television broadcasting service without a licence       310

136C..... Prohibition on providing a commercial radio broadcasting service without a licence               310

136D..... Prohibition on providing a community television broadcasting service without a licence         310

136E...... Prohibition on providing a community radio broadcasting service without a licence                311

136F...... Continuing breaches........................................................................ 311

Division 2—Action by ACMA where a person provides a service without a licence     312

137........ Remedial directions—unlicensed services....................................... 312

138........ Breach of remedial direction—offences.......................................... 312

138A..... Breach of remedial direction—civil penalty provision..................... 313

Division 3—Action in relation to breaches by licensees                         314

139........ Offence for breach of conditions of licences and class
licences
............................................................................................ 314

140........ Continuing offences........................................................................ 316

140A..... Civil penalty provisions relating to breach of conditions of licences and class licences            316

141........ Remedial directions—licence conditions, class licences and codes of practice         317

142........ Breach of remedial direction—offences.......................................... 319

142A..... Breach of remedial direction—civil penalty provision..................... 320

143........ Suspension and cancellation............................................................ 321

Division 4—Action in relation to class licences                                          323

144........ Application to Federal Court........................................................... 323

Part 10A—Anti‑hoarding rules                                                                                 324

Division 1—Introduction                                                                                        324

146A..... Simplified outline............................................................................ 324

146B..... Definitions...................................................................................... 325

146C..... Designated events and designated series of events.......................... 326

146CA.. When event or series is eligible for delayed televising in the Central‑Western time zones        327

146D..... Program suppliers........................................................................... 328

Division 2—Commercial television broadcasting licensees                  330

146E...... Anti‑hoarding rule—licensees......................................................... 330

146F...... Anti‑hoarding rule—program suppliers.......................................... 331

146G..... What constitutes an offer to transfer rights to televise live events... 332

146H..... Offers to transfer rights to televise live events................................ 333

146J...... Contracts to acquire rights to televise live events must authorise the transfer of the rights       334

146K..... Simultaneous events in a series....................................................... 335

146KA.. Delayed televising in the Central‑Western time zones..................... 336

Division 3—National broadcasters                                                                   338

146L...... Anti‑hoarding rule........................................................................... 338

146M.... What constitutes an offer to transfer rights to televise live events... 339

146N..... Offers to transfer rights to televise live events................................ 339

146P...... Contracts to acquire rights to televise live events must authorise the transfer of the rights       340

146Q..... Simultaneous events in a series....................................................... 340

146R..... Delayed televising in the Central‑Western time zones..................... 341

Division 4—Review of anti‑hoarding provisions                                       344

146S...... Review of anti‑hoarding provisions................................................ 344

Part 11—Complaints to the ACMA                                                                       345

Division 1—Complaints relating to action under licences and class licences      345

147........ Complaints relating to offences or breach of licence c
onditions
......................................................................................... 345

148........ Complaints under codes of practice................................................. 345

149........ Investigation of complaints by the ACMA..................................... 345

Division 2—Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS                                                                                 347

150........ Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS           347

151........ Investigation of complaints relating to the ABC or SBS by the ACMA  347

152........ Action by ACMA where complaint justified.................................. 347

153........ ACMA may report to Minister on results of recommendation........ 348

Part 13—Information gathering by the ACMA                                             349

Division 1—Introduction                                                                                        349

168........ Obtaining of information by the ACMA......................................... 349

169........ Decision‑making by the ACMA not limited to matters discovered by investigation or hearing               349

Division 2—Investigations                                                                                     350

170........ Investigations by the ACMA.......................................................... 350

171........ Minister may direct ACMA to conduct an investigation................. 350

172........ ACMA may call for written submissions from the public.............. 350

173........ Notice requiring appearance for examination.................................. 351

174........ Examination on oath or affirmation................................................. 351

175........ Examination to take place in private................................................ 351

176........ Record to be made of examination.................................................. 351

177........ Production of documents for inspection.......................................... 352

178........ Report on investigation................................................................... 352

179........ Publication of report........................................................................ 352

180........ Person adversely affected by report to be given opportunity to comment 352

Division 3—Hearings                                                                                                354

182........ Power to hold hearings................................................................... 354

183........ Minister may direct ACMA to hold a hearing................................. 354

184........ Procedure for conduct of hearings.................................................. 354

185........ ACMA may direct holding of conference....................................... 354

186........ Hearings to be informal, quick and economical............................... 355

187........ Hearings to be in public except in exceptional cases....................... 355

188........ Public notice of hearings................................................................. 355

189........ Confidential material not to be published........................................ 355

190........ Directions as to private hearings..................................................... 356

191........ Constitution of ACMA for conduct of hearings............................. 356

192........ Presiding member........................................................................... 356

193........ Reconstitution of hearing panel....................................................... 356

194........ Exercise of powers in relation to conduct of hearing....................... 356

195........ Summons to give evidence or produce documents.......................... 357

196........ Written submissions may be made to hearing................................. 357

197........ Evidence and submissions to be taken into account by
ACMA
............................................................................................ 357

198........ Representation at hearings............................................................... 357

199........ Reports on hearings........................................................................ 358

Division 4—General                                                                                                  359

200........ Protection of members and persons giving evidence....................... 359

201........ Protection of panel conducting hearing........................................... 359

202........ Non‑compliance with requirement to give evidence........................ 359

203........ Proceedings for defamation not to lie.............................................. 361

Part 14—Appeals to the Administrative Appeals Tribunal                     362

204........ Appeals to the Administrative Appeals Tribunal............................. 362

205........ Notification of decisions to include notification of reasons and appeal rights           367

Part 14A—Accounts and payment of licence fees                                         368

205A..... Definitions...................................................................................... 368

205B..... Broadcasting licensees to keep accounts......................................... 368

205BA.. Datacasting transmitter licensees to keep accounts.......................... 370

205C..... Payment of licence fees................................................................... 371

205D..... Penalty for unpaid licence fees........................................................ 371

Part 14B—Civil penalties                                                                                              375

Division 1—Ancillary contravention of civil penalty provision         375

205E...... Ancillary contravention of civil penalty provision........................... 375

Division 2—Civil penalty orders                                                                        376

205EA... Simplified outline............................................................................ 376

205F...... Civil penalty orders......................................................................... 376

205G..... Who may apply for a civil penalty order......................................... 377

205H..... 2 or more proceedings may be heard together................................. 378

205J...... Time limit for application for an order............................................. 378

205K..... Civil evidence and procedure rules for civil penalty orders............. 378

205L...... Civil proceedings after criminal proceedings................................... 378

205M.... Criminal proceedings during civil proceedings............................... 378

205N..... Criminal proceedings after civil proceedings................................... 378

205P...... Evidence given in proceedings for a civil penalty order not admissible in criminal proceedings              379

205PAA Mistake of fact................................................................................ 379

Part 14C—Injunctions                                                                                                    381

205PA... Simplified outline............................................................................ 381

205Q..... Injunctions...................................................................................... 381

205R..... Interim injunctions.......................................................................... 381

205S...... Discharge etc. of injunctions........................................................... 382

205T...... Certain limits on granting injunctions not to apply.......................... 382

205U..... Other powers of the Federal Court unaffected................................ 382

Part 14D—Enforceable undertakings                                                                   383

205V..... Simplified outline............................................................................ 383

205W.... Acceptance of undertakings............................................................ 383

205X..... Enforcement of undertakings.......................................................... 384

Part 14E—Infringement notices                                                                               385

205XAASimplified outline............................................................................ 385

205XA.. Formal warning............................................................................... 385

205Y..... When an infringement notice can be given...................................... 385

205Z...... Matters to be included in an infringement notice............................. 386

205ZA... Amount of penalty.......................................................................... 386

205ZB... Withdrawal of an infringement notice............................................. 386

205ZC... What happens if the penalty is paid................................................. 387

205ZD... Effect of this Part on criminal proceedings...................................... 387

205ZE... Appointment of authorised infringement notice officer................... 388

205ZF... Regulations..................................................................................... 388

Part 15—Miscellaneous                                                                                                  389

206........ Broadcasting or datacasting taken to be publication in permanent form 389

207........ Amounts of fees.............................................................................. 389

209........ Prosecutions.................................................................................... 389

210........ Publication of opinions................................................................... 389

211........ Service of notices............................................................................ 390

212........ Special provisions for re‑transmission of programs........................ 390

212A..... Self‑help providers.......................................................................... 392

212B..... Declared self‑help providers and excluded providers...................... 393

213........ Penalties for continuing offences.................................................... 394

214........ Procedure relating to continuing offences....................................... 394

215........ Guidelines relating to ACMA’s enforcement powers etc................ 395

215A..... Review—technologies for the transmission of digital radio broadcasting services and restricted datacasting services in regional licence areas etc................................................................. 396

215B..... Review—development and regulation of digital radio broadcasting services and restricted datacasting services     397

216........ Ministerial consultative and advisory bodies................................... 398

216A..... Schedule 4 (digital television broadcasting).................................... 398

216B..... Schedule 5 (online services)............................................................ 398

216C..... Schedule 6 (datacasting services).................................................... 398

216D..... Schedule 7 (content services).......................................................... 399

217........ Regulations..................................................................................... 399

218........ Channel sharing.............................................................................. 399

Schedule 1—Control and ownership of company interests                     400

Part 1—Introduction                                                                                                        400

1............ Control—general............................................................................. 400

Part 2—When person is in a position to exercise control                           402

2............ When person is in a position to exercise control............................. 402

3............ When person is in a position to exercise control of a newspaper.... 405

4............ Special provisions for authorised lenders........................................ 406

Part 3—Deemed control                                                                                                 410

5............ Explanation of examples................................................................. 410

6............ The 15% rule................................................................................... 410

7............ Application of method through chain of companies........................ 410

Part 4—Tracing of ownership                                                                                   411

8............ Tracing of ownership...................................................................... 411

Schedule 2—Standard conditions                                                                            413

Part 1—Interpretation                                                                                                    413

1............ Definitions...................................................................................... 413

2............ Interpretation—certain things do not amount to broadcasting of advertisements      416

Part 2—Special conditions                                                                                            417

3............ Broadcasting of political or controversial material........................... 417

3A......... Broadcasting of election advertisements.......................................... 417

4............ Identification of certain political matter............................................ 418

5............ Records of matter broadcast............................................................ 419

6............ Advertisements relating to medicines.............................................. 420

Part 3—Commercial television broadcasting licences                                  422

7............ Conditions of commercial television broadcasting licences............. 422

Part 4—Commercial radio broadcasting licences                                          429

8............ Standard conditions of commercial radio broadcasting
licences
............................................................................................ 429

Part 5—Community broadcasting licences                                                        433

9............ Conditions applicable to services provided under community broadcasting licences                433

Part 6—Subscription television broadcasting licences                                 437

10.......... Conditions applicable to subscription television broadcasting licences 437

Part 7—Services provided under class licences                                               440

11.......... Conditions applicable to broadcasting services provided under class licences          440


An Act relating to broadcasting services, datacasting services, online services and content services, and for related purposes

  

Part 1Preliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Broadcasting Services Act 1992.

2  Commencement [see Note 1]

             (1)  Section 1, this section, sections 3 and 6 commence on the day on which this Act receives the Royal Assent.

             (2)  The remaining provisions of this Act commence on a day to be fixed by Proclamation.

             (3)  If those provisions do not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, those provisions commence on the first day after the end of that period.

3  Objects of this Act

             (1)  The objects of this Act are:

                     (a)  to promote the availability to audiences throughout Australia of a diverse range of radio and television services offering entertainment, education and information; and

                    (aa)  to promote the availability to audiences and users throughout Australia of a diverse range of datacasting services; and

                     (b)  to provide a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs; and

                   (ba)  to provide a regulatory environment that will facilitate the development of a datacasting industry in Australia that is efficient, competitive and responsive to audience and user needs; and

                     (c)  to encourage diversity in control of the more influential broadcasting services; and

                     (e)  to promote the role of broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity; and

                    (ea)  to promote the availability to audiences throughout Australia of television and radio programs about matters of local significance; and

                      (f)  to promote the provision of high quality and innovative programming by providers of broadcasting services; and

                    (fa)  to promote the provision of high quality and innovative content by providers of datacasting services; and

                     (g)  to encourage providers of commercial and community broadcasting services to be responsive to the need for a fair and accurate coverage of matters of public interest and for an appropriate coverage of matters of local significance; and

                     (h)  to encourage providers of broadcasting services to respect community standards in the provision of program material; and

                   (ha)  to ensure designated content/hosting service providers respect community standards in relation to content; and

                      (i)  to encourage the provision of means for addressing complaints about broadcasting services; and

                      (j)  to ensure that providers of broadcasting services place a high priority on the protection of children from exposure to program material which may be harmful to them; and

                    (ja)  to ensure that international broadcasting services are not provided contrary to Australia’s national interest; and

                     (k)  to provide a means for addressing complaints about certain internet content; and

                      (l)  to restrict access to certain internet content that is likely to cause offence to a reasonable adult; and

                    (m)  to protect children from exposure to internet content that is unsuitable for children; and

                     (n)  to ensure the maintenance and, where possible, the development of diversity, including public, community and indigenous broadcasting, in the Australian broadcasting system in the transition to digital broadcasting.

             (2)  In this section:

designated content/hosting service provider has the same meaning as in Schedule 7.

internet content has the same meaning as in Schedule 5.

4  Regulatory policy

             (1)  The Parliament intends that different levels of regulatory control be applied across the range of broadcasting services, datacasting services and internet services according to the degree of influence that different types of broadcasting services, datacasting services and internet services are able to exert in shaping community views in Australia.

             (2)  The Parliament also intends that broadcasting services and datacasting services in Australia be regulated in a manner that, in the opinion of the ACMA:

                     (a)  enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services and datacasting services; and

                     (b)  will readily accommodate technological change; and

                     (c)  encourages:

                              (i)  the development of broadcasting technologies and datacasting technologies, and their application; and

                             (ii)  the provision of services made practicable by those technologies to the Australian community.

             (3)  The Parliament also intends that internet carriage services supplied to end‑users in Australia, be regulated in a manner that:

                     (a)  enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on internet service providers; and

                     (b)  will readily accommodate technological change; and

                     (c)  encourages:

                              (i)  the development of internet technologies and their application; and

                             (ii)  the provision of services made practicable by those technologies to the Australian community; and

                            (iii)  the supply of internet carriage services at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community.

       (3AA)  The Parliament also intends that designated content/hosting services be regulated in a manner that:

                     (a)  enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on the providers of those services; and

                     (b)  will readily accommodate technological change; and

                     (c)  encourages:

                              (i)  the development of communications technologies and their application; and

                             (ii)  the provision of services made practicable by those technologies to the Australian community.

          (3A)  This section does not apply to Part 8B (which deals with international broadcasting services).

             (4)  In this section:

designated content/hosting service has the same meaning as in Schedule 7.

internet carriage service has the same meaning as in Schedule 5.

internet content has the same meaning as in Schedule 5.

internet service provider has the same meaning as in Schedule 5.

5  Role of the ACMA

             (1)  In order to achieve the objects of this Act in a way that is consistent with the regulatory policy referred to in section 4, the Parliament:

                     (a)  charges the ACMA with responsibility for monitoring the broadcasting industry, the datacasting industry, the internet industry and the commercial content service industry; and

                     (b)  confers on the ACMA a range of functions and powers that are to be used in a manner that, in the opinion of the ACMA, will:

                              (i)  produce regulatory arrangements that are stable and predictable; and

                             (ii)  deal effectively with breaches of the rules established by this Act.

             (2)  Where it is necessary for the ACMA to use any of the powers conferred on it by this Act to deal with a breach of this Act or the regulations, the Parliament intends that the ACMA use its powers, or a combination of its powers, in a manner that, in the opinion of the ACMA, is commensurate with the seriousness of the breach concerned.

             (3)  This section does not, by implication, limit the functions and powers of:

                     (b)  the Australian Competition and Consumer Commission; or

                     (c)  any other body or person who has regulatory responsibilities in relation to the internet industry.

             (4)  In this section:

commercial content service has the same meaning as in Schedule 7.

6  Interpretation

             (1)  In this Act, unless the contrary intention appears:

ACMA means the Australian Communications and Media Authority.

amount paid on shares, in relation to a company, includes an amount treated by the company as having been so paid.

analog commercial radio broadcasting service means a commercial radio broadcasting service that is transmitted using an analog modulation technique.

analog community radio broadcasting service means a community radio broadcasting service that is transmitted using an analog modulation technique.

anti‑siphoning event means an event, or an event of a kind, that is specified in a notice under subsection 115(1). For this purpose, disregard subsections 115(1AA) and (1B).

associate, in relation to a person in relation to control of a licence or a newspaper, or control of a company in relation to a licence or a newspaper, means:

                     (a)  the person’s spouse or a parent, child, brother or sister of the person; or

                     (b)  a partner of the person or, if a partner of the person is a natural person, a spouse or a child of a partner of the person; or

                     (c)  if the person or another person who is an associate of the person under another paragraph receives benefits or is capable of benefiting under a trust—the trustee of the trust; or

                     (d)  a person (whether a company or not) who:

                              (i)  acts, or is accustomed to act; or

                             (ii)  under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;

                            in accordance with the directions, instructions or wishes of, or in concert with, the first‑mentioned person or of the first‑mentioned person and another person who is an associate of the first‑mentioned person under another paragraph; or

                     (e)  if the person is a company—another company if:

                              (i)  the other company is a related body corporate of the person for the purposes of the Corporations Act 1990; or

                             (ii)  the person, or the person and another person who is an associate of the person under another paragraph, are in a position to exercise control of the other company;

but persons are not associates if the ACMA is satisfied that they do not act together in any relevant dealings relating to that company, licence or newspaper, and neither of them is in a position to exert influence over the business dealings of the other in relation to that company, licence or newspaper.

Note 1:       Licence is given an extended meaning by this subsection.

Note 2:       See also subsection (3).

associate member means an associate member of the ACMA.

authorised infringement notice officer means:

                     (a)  the Chair of the ACMA; or

                     (b)  a member of the staff of the ACMA appointed under section 205ZE.

broadcasting service means a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:

                     (a)  a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or

                     (b)  a service that makes programs available on demand on a point‑to‑point basis, including a dial‑up service; or

                     (c)  a service, or a class of services, that the Minister determines, by notice in the Gazette, not to fall within this definition.

broadcasting services bands means:

                     (a)  that part of the radiofrequency spectrum that:

                              (i)  is designated under subsection 31(1) of the Radiocommunications Act 1992 as being primarily for broadcasting purposes; and

                             (ii)  is referred by the Minister under that subsection to the ACMA for planning; and

                     (b)  that part of the radiofrequency spectrum that:

                              (i)  is designated under subsection 31(1A) of the Radiocommunications Act 1992 as being partly for the purpose of digital radio broadcasting services and restricted datacasting services; and

                             (ii)  is referred by the Minister under that subsection to the ACMA for planning.

broadcasting services bands licence means a commercial television broadcasting licence, a commercial radio broadcasting licence or a community broadcasting licence that uses the broadcasting services bands as a means of delivering broadcasting services.

business day means a day that is not a Saturday, a Sunday or a public holiday in the place concerned.

census count means a census count of the Australian population published by the Australian Statistician.

CER Trade in Services Protocol:

                     (a)  means the Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations Trade Agreement (being that Protocol as in force from time to time); and

                     (b)  includes an instrument under that Protocol (being that instrument as in force from time to time).

Chair means the Chair of the ACMA.

channel B datacasting transmitter licence has the same meaning as in the Radiocommunications Act 1992, and includes an authorisation under section 114 of that Act by the licensee of such a licence.

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

civil penalty order means an order under subsection 205F(1).

civil penalty provision means a provision declared by this Act to be a civil penalty provision.

class licence means a class licence determined by the ACMA under section 117.

commercial broadcasting service has the meaning given by section 14.

commercial radio broadcasting licence means a licence under Part 4 to provide:

                     (a)  in the case of a licence allocated under subsection 40(1)—a commercial radio broadcasting service; or

                     (b)  in any other case—the commercial radio broadcasting service or services that, under section 41D, are authorised by the licence.

commercial radio broadcasting service means a commercial broadcasting service that provides radio programs.

commercial television broadcasting licence means a licence under Part 4 to provide:

                     (a)  in the case of a licence allocated under subsection 40(1)—a commercial television broadcasting service; or

                     (b)  in any other case—the commercial television broadcasting services that, under section 41B or 41C, are authorised by the licence.

commercial television broadcasting service means a commercial broadcasting service that provides television programs.

community broadcasting licence means:

                     (a)  a community radio broadcasting licence; or

                     (b)  a community television broadcasting licence.

community broadcasting service has the meaning given by section 15.

community radio broadcasting licence means:

                     (a)  a licence under Part 6 to provide:

                              (i)  in the case of a licence allocated under subsection 82(1)—a community radio broadcasting service; or

                             (ii)  in the case of a designated community radio broadcasting licence—the community radio broadcasting service or services that, under section 85A, are authorised by the licence; or

                            (iii)  in any other case—a community radio broadcasting service; or

                     (b)  a licence under Part 6A to provide a community radio broadcasting service.

community radio broadcasting service means a community broadcasting service that provides radio programs.

community television broadcasting licence means a licence under Part 6 or 6A to provide a community broadcasting service that provides television programs.

company interests, in relation to a person who has a shareholding interest, a voting interest, a dividend interest or a winding‑up interest in a company, means the percentage of that interest or, if the person has 2 or more of those interests, whichever of those interests has the greater or greatest percentage.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.

core commercial television broadcasting service, in relation to a commercial television broadcasting licence, has the meaning given by whichever of paragraph 41A(1)(b) or (2)(a) is applicable.

CTV licence means a community broadcasting licence under Part 6 to provide a service that provides television programs but is not targeted, to a significant extent, to one or more remote Indigenous communities.

datacasting licence means a licence under Schedule 6 to provide a datacasting service.

datacasting service means a service that delivers content:

                     (a)  whether in the form of text; or

                     (b)  whether in the form of data; or

                     (c)  whether in the form of speech, music or other sounds; or

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

                     (e)  whether in any other form; or

                      (f)  whether in any combination of forms;

to persons having equipment appropriate for receiving that content, where the delivery of the service uses the broadcasting services bands.

datacasting transmitter licence has the same meaning as in the Radiocommunications Act 1992, and includes an authorisation under section 114 of that Act by the licensee of such a licence.

designated community radio broadcasting licence has the meaning given by section 8AA.

designated infringement notice provision means a provision declared by this Act to be a designated infringement notice provision.

digital commercial radio broadcasting service means a commercial radio broadcasting service that is transmitted using a digital modulation technique.

digital community radio broadcasting service means a community radio broadcasting service that is transmitted using a digital modulation technique.

digital national radio broadcasting service means a national radio broadcasting service that is transmitted using a digital modulation technique.

digital program enhancement content, in relation to a radio program, means content:

                     (a)  in the form of text; or

                     (b)  in the form of still visual images; or

                     (c)  if a form is specified in a legislative instrument made by the Minister—in that form; or

                     (d)  in any combination of the above forms;

where:

                     (e)  the content is transmitted using a digital modulation technique; and

                      (f)  both the content and the radio program are intended to be received by the same reception equipment; and

                     (g)  if:

                              (i)  the reception equipment is capable of receiving both the content and the radio program; and

                             (ii)  the reception equipment is set to receive the radio program;

                            the reception equipment will also receive the content.

digital radio moratorium period for a licence area has the meaning given by subsection 35C(3).

digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.

digital radio start‑up day for a licence area has the meaning given by section 8AC.

domestic digital television receiver has the same meaning as in the Radiocommunications Act 1992.

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

Federal Court means the Federal Court of Australia.

foundation digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.

infringement notice means an infringement notice under section 205Y.

international broadcasting guidelines means guidelines in force under section 121FP.

international broadcasting licence means a licence to provide an international broadcasting service.

international broadcasting service has the meaning given by section 18A.

legislature of a Territory means:

                     (a)  the Legislative Assembly for the Australian Capital Territory; or

                     (b)  the Legislative Assembly of the Northern Territory; or

                     (c)  such other Territory legislative bodies as are prescribed.

licence means:

                     (a)  in the definition of associate, section 7, Part 5 and Schedule 1:

                              (i)  a licence allocated by the ACMA under this Act (other than a class licence); or

                             (ii)  a datacasting transmitter licence; and

                     (b)  in any other provision of this Act—a licence allocated by the ACMA under this Act (other than a class licence).

licence area means an area designated by the ACMA under section 29, 40 or 92G.

Note:          See also section 8AD, which deals with deemed radio broadcasting licence areas.

licence area population, in relation to a licence area, means the population of the licence area determined under section 30.

line has the same meaning as in the Telecommunications Act 1997.

MDS system means a system for transmitting radiocommunications on a frequency or frequencies within:

                     (a)  the frequency band from 2076 Megahertz up to and including 2111 Megahertz; or

                     (b)  the frequency band from 2300 Megahertz up to and including 2400 Megahertz.

member means a member of the ACMA.

Minister for Foreign Affairs means the Minister administering the Diplomatic Privileges and Immunities Act 1967.

multiplex capacity has the same meaning as in Division 4B of Part 3.3 of the Radiocommunications Act 1992.

national broadcaster means the provider of a national broadcasting service referred to in paragraph 13(1)(a) or (b).

national broadcasting service has the meaning given by section 13.

national radio broadcasting service means a national broadcasting service that provides radio programs.

newspaper means a newspaper that is in the English language and is published on at least 4 days in each week, but does not include a publication if less than 50% of its circulation is by way of sale.

offence against this Act includes an offence against section 136.1 or 137.1 of the Criminal Code that relates to this Act.

open narrowcasting radio service means an open narrowcasting service that provides radio programs.

open narrowcasting service has the meaning given by section 18.

open narrowcasting television service means an open narrowcasting service that provides television programs.

overlap area, in relation to a licence area part of which is within another licence area, means the area of overlap between the 2 licence areas.

parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.

Parliament means:

                     (a)  the Parliament of the Commonwealth; or

                     (b)  a State Parliament; or

                     (c)  the legislature of a Territory.

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

political party means an organisation whose objects or activities include the promotion of the election of candidates endorsed by it to a Parliament.

population of Australia means the Australian population determined by the ACMA under section 30.

program, in relation to a broadcasting service, means:

                     (a)  matter the primary purpose of which is to entertain, to educate or to inform an audience; or

                     (b)  advertising or sponsorship matter, whether or not of a commercial kind.

program standards means standards determined by the ACMA relating to the content or delivery of programs.

radio program has a meaning affected by section 8AB.

registered code of practice means a code of practice registered under:

                     (a)  section 123; or

                     (b)  clause 62 of Schedule 5; or

                     (c)  clause 28 of Schedule 6; or

                     (d)  clause 85 of Schedule 7.

remote Indigenous community has the meaning given by section 8B.

restricted datacasting licence means a datacasting licence allocated as a result of an application for a restricted datacasting licence.

restricted datacasting service means a datacasting service provided under, and in accordance with the conditions of, a restricted datacasting licence.

satellite subscription television broadcasting licence means a licence under Part 7 to provide a subscription television broadcasting service with the use of a subscription television satellite.

shares, in relation to a company, means shares in, or stock forming part of, the capital of the company.

spouse of a person includes a de facto partner of the person within the meaning of the Acts Interpretation Act 1901.

subscription broadcasting service has the meaning given by section 16.

subscription fee includes any form of consideration.

subscription narrowcasting service has the meaning given by section 17.

subscription radio broadcasting service means a subscription broadcasting service that provides radio programs.

subscription radio narrowcasting service means a subscription narrowcasting service that provides radio programs.

subscription television broadcasting licence means a licence under Part 7 to provide one or more subscription television broadcasting services.

subscription television broadcasting service means a subscription broadcasting service that provides television programs.

subscription television narrowcasting service means a subscription narrowcasting service that provides television programs.

subscription television satellite means a satellite that was, at any time before 1 July 1997, operated under the general telecommunications licence that was granted to AUSSAT Pty Ltd and notified on 26 November 1991 in Gazette No. S323.

telecommunications carrier means a carrier (within the meaning of the Telecommunications Act 1997).

temporary community broadcasting licence means a community broadcasting licence that:

                     (a)  is a broadcasting services bands licence; and

                     (b)  is allocated under Part 6A.

transaction includes:

                     (a)  arrangements under which a person becomes a director of a company; and

                     (b)  the acquisition of things by gift or inheritance.

             (2)  A determination under paragraph (c) of the definition of broadcasting service in subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (3)  For the purposes of paragraph (a) of the definition of associate in subsection (1), if one person is the child of another person because of the definition of child in this section, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.

7  Interpretation—meaning of control

                   Schedule 1 sets out mechanisms that are to be used in:

                     (a)  deciding whether a person is in a position to exercise control of a licence, a company or a newspaper for the purposes of this Act; and

                     (b)  tracing company interests of persons.

Note:          Licence is given an extended meaning by subsection 6(1).

8  Interpretation—shareholding interests, voting interests, dividend interests and winding‑up interests

             (1)  For the purposes of this Act:

                     (a)  a person has a shareholding interest in a company if the person is beneficially entitled to, or to an interest in, shares in the company, whether or not any part of the legal ownership of the shares is vested in the person; and

                     (b)  the percentage of the interest is the value of the shares, or of the interest in the shares, as the case may be, on the basis that the value of the shares is equal to the amount paid on the shares, expressed as a percentage of the total of all amounts paid on shares in the company.

             (2)  For the purposes of this Act:

                     (a)  a person has a voting interest in a company if the person is in a position to exercise control of votes cast on a poll at a meeting of the company; and

                     (b)  the percentage of the interest is the greatest percentage of the number of votes, expressed as a percentage of the total number of votes that could be cast on any issue at a meeting of the company, the casting of which the person is in a position to control.

             (3)  For the purposes of this Act:

                     (a)  a person has a dividend interest in a company if:

                              (i)  the person is, or would become if a dividend were declared, beneficially entitled to be paid or credited a dividend by the company; or

                             (ii)  under the memorandum and articles of association of the company, a share of any profits of the company is to be, or may be, paid or credited to the person otherwise than as dividends on shares; and

                     (b)  the percentage of the interest is:

                              (i)  if subparagraph (a)(i) applies—the amount of the dividend to which the person is beneficially entitled or will become beneficially entitled expressed as a percentage of the total of all dividends to which members of the company become entitled at that time; or

                             (ii)  if subparagraph (a)(ii) applies—the amount of the maximum share of any profits of the company that could be paid or credited to the person at a particular time expressed as a percentage of the total of all shares of profits that could be paid or credited to all members of the company at that time.

             (4)  For the purposes of this Act:

                     (a)  a person has a winding‑up interest in a company if the person would be entitled to a share of the property of the company that could be distributed among members of the company if property of the company were distributed among members, whether as a result of a winding‑up or otherwise; and

                     (b)  the percentage of the interest is the percentage that the value of that part of the property of the company to which the person would be so entitled bears to the total value of the property of the company.

             (5)  A person may have a voting interest, a dividend interest or a winding‑up interest in a company even if the person does not have a beneficial entitlement to, or to an interest in, shares in the company.

8A  Captioning taken to be part of program

             (1)  For the purposes of this Act, if a television program is captioned for the deaf and hearing impaired, the captioning is taken to be part of the program.

             (2)  Subsection (1) is enacted for the avoidance of doubt.

8AA  Designated community radio broadcasting licence

             (1)  For the purposes of this Act, a community radio broadcasting licence is a designated community radio broadcasting licence if:

                     (a)  the community radio broadcasting licence was allocated under Part 6 (other than under subsection 82(1)); and

                     (b)  the licence area of the community radio broadcasting licence is the same as the licence area of a commercial radio broadcasting licence; and

                     (c)  the community radio broadcasting service or services provided under the community radio broadcasting licence satisfy such conditions (if any) as are set out in a legislative instrument made by the ACMA.

Note:          See also section 8AD, which deals with deemed radio broadcasting licence areas.

             (2)  The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by paragraph (1)(c).

             (3)  The ACMA must comply with a direction under subsection (2).

8AB  Digital program enhancement content taken to be a radio program

Commercial radio broadcasting services

             (1)  For the purposes of this Act and any other law of the Commonwealth, if a commercial radio broadcasting licensee provides:

                     (a)  a digital commercial radio broadcasting service; and

                     (b)  digital program enhancement content in relation to a radio program delivered by that service;

the digital program enhancement content is taken to be a radio program delivered by that service.

Community radio broadcasting services

             (2)  For the purposes of this Act and any other law of the Commonwealth, if a designated community radio broadcasting licensee provides:

                     (a)  a digital community radio broadcasting service; and

                     (b)  digital program enhancement content in relation to a radio program delivered by that service;

the digital program enhancement content is taken to be a radio program delivered by that service.

National radio broadcasting services

             (3)  For the purposes of this Act and any other law of the Commonwealth, if a national broadcaster provides:

                     (a)  a digital national radio broadcasting service; and

                     (b)  digital program enhancement content in relation to a radio program delivered by that service;

the digital program enhancement content is taken to be a radio program delivered by that service.

8AC  Digital radio start‑up day

             (1)  If the ACMA is satisfied that:

                     (a)  the ACMA has taken sufficient action under:

                              (i)  Part 3 of this Act; and

                             (ii)  Part 2.3 of the Radiocommunications Act 1992;

                            to facilitate the provision of the following services in a licence area:

                            (iii)  digital commercial radio broadcasting services;

                            (iv)  digital community radio broadcasting services;

                             (v)  digital national radio broadcasting services; and

                     (b)  one or more foundation digital radio multiplex transmitter licences have been issued for the licence area; and

                     (c)  the multiplex capacity, or the combined multiplex capacities, of those licences are sufficient to fulfil the standard access entitlements that are likely to come into existence under subsection 118NQ(2) of the Radiocommunications Act 1992 in its application to the licence area; and

                     (d)  an access undertaking under Division 4B of Part 3.3 of the Radiocommunications Act 1992 is in force for the licence or licences referred to in paragraph (b);

the ACMA may, by writing, declare a specified day to be the digital radio start‑up day for the licence area.

             (2)  A day specified in a declaration under subsection (1) must not be earlier than the day on which the declaration is made.

             (3)  The ACMA must ensure that:

                     (a)  the digital radio start‑up day for a metropolitan licence area is not later than 1 July 2009; and

                     (b)  the digital radio start‑up day for a regional licence area is the day specified for the regional licence area in a legislative instrument made by the Minister.

             (4)  A copy of a declaration under subsection (1) must be made available on the ACMA’s website.

             (5)  A declaration under subsection (1) is not a legislative instrument.

ACMA to give notice of intention to make a declaration

             (6)  Before making a declaration under subsection (1), the ACMA must, by notice published on the ACMA’s website, give at least 30 days’ written notice of its intention to make the declaration.

             (7)  A notice under subsection (6) is not a legislative instrument.

Definitions

             (8)  In this section:

licence area means:

                     (a)  the licence area of a commercial radio broadcasting licence; or

                     (b)  the licence area of a community radio broadcasting licence, where that licence area is the same as the licence area of a commercial radio broadcasting licence.

metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:

                     (a)  New South Wales; or

                     (b)  Victoria; or

                     (c)  Queensland; or

                     (d)  Western Australia; or

                     (e)  South Australia.

regional licence area means a licence area that is not a metropolitan licence area.

Note:          See also section 8AD, which deals with deemed radio broadcasting licence areas.

8AD  Deemed radio broadcasting licence areas

Western Suburbs Sydney RA1

             (1)  For the purposes of:

                     (a)  section 8AC of this Act; and

                     (b)  the definition of designated BSA radio area in section 5 of the Radiocommunications Act 1992; and

                     (c)  the application of:

                              (i)  any other provision of this Act; or

                             (ii)  any other provision of the Radiocommunications Act 1992; or

                            (iii)  any other law of the Commonwealth;

                            to digital commercial radio broadcasting services;

the licence area known as Western Suburbs Sydney RA1 is taken to be the same as the commercial radio broadcasting licence area in which is situated the General Post Office of Sydney.

Hobart RA2 and Hobart RA4

             (2)  For the purposes of:

                     (a)  sections 8AA and 8AC of this Act; and

                     (b)  the definition of designated BSA radio area in section 5 of the Radiocommunications Act 1992; and

                     (c)  paragraph 9C(1)(i) and subparagraph 9C(1)(j)(ii) of the Radiocommunications Act 1992; and

                     (d)  the application of:

                              (i)  any other provision of this Act; or

                             (ii)  any other provision of the Radiocommunications Act 1992; or

                            (iii)  any other law of the Commonwealth;

                            to digital community radio broadcasting services;

the licence areas known as Hobart RA2 and Hobart RA4 are taken to be the same as the commercial radio broadcasting licence area in which is situated the General Post Office of Hobart.

Other licence areas

             (3)  The ACMA may, by legislative instrument, determine that, for the purposes of:

                     (a)  sections 8AA and 8AC of this Act; and

                     (b)  the definition of designated BSA radio area in section 5 of the Radiocommunications Act 1992; and

                     (c)  paragraph 9C(1)(i) and subparagraph 9C(1)(j)(ii) of the Radiocommunications Act 1992; and

                     (d)  the application of:

                              (i)  any other provision of this Act; or

                             (ii)  any other provision of the Radiocommunications Act 1992; or

                            (iii)  any other law of the Commonwealth;

                            to digital community radio broadcasting services;

a specified licence area of a community radio broadcasting licence is taken to be the same as a specified licence area of a commercial radio broadcasting licence.

             (4)  The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by subsection (3).

             (5)  The ACMA must comply with a direction under subsection (4).

8B  Remote Indigenous community

             (1)  An Indigenous community is a remote Indigenous community for the purposes of this Act if the ACMA so determines in writing.

             (2)  A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

9  Act to bind the Crown

                   This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory, but nothing in this Act renders the Crown liable to be prosecuted for an offence.

10  Extension of Act to the external Territories

                   This Act extends to all the external Territories.

10A  Application of the Criminal Code

             (1)  Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  Despite subsection (1), Part 2.5 of the Criminal Code does not apply to an offence against Schedule 5 to this Act.


 

Part 2Categories of broadcasting services

  

11  Categories of broadcasting services

                   The following categories of broadcasting services are broadcasting services to which this Act relates:

                     (a)  national broadcasting services;

                     (b)  commercial broadcasting services;

                     (c)  community broadcasting services;

                     (d)  subscription broadcasting services;

                     (e)  subscription narrowcasting services;

                      (f)  open narrowcasting services;

                    (fa)  international broadcasting services.

11A  Dual categorisation of international broadcasting services

                   An international broadcasting service may also fall into another category of broadcasting services.

12  Method of regulating particular services

             (1)  Commercial broadcasting services, community broadcasting services, subscription television broadcasting services and international broadcasting services require individual licences.

             (2)  Other broadcasting services (other than national broadcasting services) are to be provided under the relevant class licence.

Dual categorisation of international broadcasting services

             (3)  An international broadcasting service that also falls into the category of commercial broadcasting services requires both:

                     (a)  an international broadcasting licence; and

                     (b)  either:

                              (i)  a commercial radio broadcasting licence; or

                             (ii)  a commercial television broadcasting licence.

             (4)  An international broadcasting service that also falls into the category of community broadcasting services requires both:

                     (a)  an international broadcasting licence; and

                     (b)  a community broadcasting licence.

             (5)  An international broadcasting service that also falls into the category of subscription television broadcasting services requires both:

                     (a)  an international broadcasting licence; and

                     (b)  a subscription television broadcasting licence.

             (6)  Both of the following rules apply to an international broadcasting service that also falls into a category of broadcasting services covered by subsection (2):

                     (a)  the service requires an international broadcasting licence;

                     (b)  the service is to be provided under the relevant class licence.

13  National broadcasting services

             (1)  National broadcasting services are:

                     (a)  broadcasting services provided by the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or

                     (b)  broadcasting services provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; or

                     (c)  broadcasting services provided under the Parliamentary Proceedings Broadcasting Act 1946.

             (2)  National broadcasting services do not include subscription broadcasting services or subscription or open narrowcasting services provided by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.

             (3)  Subsection (2) does not apply to services specified by the Minister by notice in the Gazette.

             (4)  A specification under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (5)  Except as expressly provided by this Act, the regulatory regime established by this Act does not apply to national broadcasting services.

14  Commercial broadcasting services

                   Commercial broadcasting services are broadcasting services:

                     (a)  that provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and

                     (b)  that provide programs that:

                              (i)  are able to be received by commonly available equipment; and

                             (ii)  are made available free to the general public; and

                     (c)  that are usually funded by advertising revenue; and

                     (d)  that are operated for profit or as part of a profit‑making enterprise; and

                     (e)  that comply with any determinations or clarifications under section 19 in relation to commercial broadcasting services.

15  Community broadcasting services

                   Community broadcasting services are broadcasting services that:

                     (a)  are provided for community purposes; and

                     (b)  are not operated for profit or as part of a profit‑making enterprise; and

                     (c)  that provide programs that:

                              (i)  are able to be received by commonly available equipment; and

                             (ii)  are made available free to the general public; and

                     (d)  comply with any determinations or clarifications under section 19 in relation to community broadcasting services.

16  Subscription broadcasting services

                   Subscription broadcasting services are broadcasting services that:

                     (a)  provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and

                     (b)  are made available to the general public but only on payment of subscription fees (whether periodical or otherwise); and

                     (c)  comply with any determinations or clarifications under section 19 in relation to subscription broadcasting services.

17  Subscription narrowcasting services

                   Subscription narrowcasting services are broadcasting services:

                     (a)  whose reception is limited:

                              (i)  by being targeted to special interest groups; or

                             (ii)  by being intended only for limited locations, for example, arenas or business premises; or

                            (iii)  by being provided during a limited period or to cover a special event; or

                            (iv)  because they provide programs of limited appeal; or

                             (v)  for some other reason; and

                     (b)  that are made available only on payment of subscription fees (whether periodical or otherwise); and

                     (c)  that comply with any determinations or clarifications under section 19 in relation to subscription narrowcasting services.

18  Open narrowcasting services

             (1)  Open narrowcasting services are broadcasting services:

                     (a)  whose reception is limited:

                              (i)  by being targeted to special interest groups; or

                             (ii)  by being intended only for limited locations, for example, arenas or business premises; or

                            (iii)  by being provided during a limited period or to cover a special event; or

                            (iv)  because they provide programs of limited appeal; or

                             (v)  for some other reason; and

                     (b)  that comply with any determinations or clarifications under section 19 in relation to open narrowcasting services.

          (1A)  A HDTV multi‑channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

       (1AA)  A SDTV multi‑channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

          (1B)  A HDTV multi‑channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

             (2)  A SDTV multi‑channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

             (3)  A digital commercial radio broadcasting service is not an open narrowcasting service.

             (4)  A digital community radio broadcasting service is not an open narrowcasting service.

             (5)  A digital national radio broadcasting service is not an open narrowcasting service.

18A  International broadcasting services

             (1)  International broadcasting services are broadcasting services that are targeted, to a significant extent, to audiences outside Australia, where:

                     (a)  the means of delivering the services involves the use of a radiocommunications transmitter in Australia (whether alone or in combination with any other means); and

                     (b)  the services comply with any determinations or clarifications under section 19 in relation to international broadcasting services.

             (2)  A broadcasting service is not an international broadcasting service if the broadcasting service is:

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

                     (b)  provided by the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; or

                     (c)  an exempt broadcasting service (as defined by subsection (3)).

             (3)  For the purposes of this section, a broadcasting service is an exempt broadcasting service if:

                     (a)  the service delivers only programs packaged outside Australia (which may include programs produced in Australia); and

                     (b)  all relevant programming decisions are made outside Australia; and

                     (c)  the service is transmitted from a place outside Australia to an earth station in Australia for the sole purpose of being immediately re‑transmitted to a satellite; and

                     (d)  the satellite is a means of delivering the service (whether alone or in combination with any other means).

             (4)  The references in this section to localities do not, by implication, affect the application of paragraph 21(b) of the Acts Interpretation Act 1901 and section 10 of this Act to a provision of this Act that deals with a category of broadcasting services other than international broadcasting services.

             (5)  In this section:

Australia includes the external Territories.

radiocommunications transmitter has the same meaning as in the Radiocommunications Act 1992.

19  ACMA may determine additional criteria or clarify existing criteria

             (1)  The ACMA may, by notice in the Gazette:

                     (a)  determine additional criteria to those specified in sections 14 to 18A; or

                     (b)  clarify the criteria specified in sections 14 to 18A;

for the purpose of distinguishing between categories of broadcasting services.

             (2)  Different criteria or clarifications may be determined or made for radio services and television services.

             (3)  The Minister may give specific directions to the ACMA as to the making of determinations and clarifications, and the ACMA must observe those directions.

20  Determinations and clarifications to be disallowable by the Parliament

                   Determinations and clarifications under section 19 are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

21  Requests to ACMA to decide which category a broadcasting service falls into

             (1)  A person who is providing, or who proposes to provide, a broadcasting service may apply to the ACMA for an opinion as to which category, or categories, of broadcasting services the service falls into.

             (2)  An application must be in accordance with a form approved in writing by the ACMA, and must state the applicant’s opinion as to which category, or categories, of broadcasting services the service falls into.

             (3)  If the ACMA considers that additional information is required before an opinion can be given, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  The ACMA must, as soon as practicable after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into.

             (5)  If the ACMA has given an opinion under this section to the provider of a broadcasting service, neither the ACMA nor any other Government agency may, while the circumstances relating to the broadcasting service remain substantially the same as those advised to the ACMA in relation to the application for the opinion:

                     (a)  take any action against the provider of the service during the period of 5 years commencing on the day on which the opinion is given on the basis that the service falls into a different category, or different categories, of broadcasting services than that advised in the opinion; or

                     (b)  unless the ACMA has made a determination or clarification under section 19 after that opinion was given that places the broadcasting service in a different category or different categories—take any action against the provider of the service after the end of that period on the basis that the service falls into a different category, or different categories, of broadcasting services.

             (6)  If the ACMA does not, within 45 days after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into, the ACMA is taken to have given an opinion at the end of that period that accords with the applicant’s opinion.

             (7)  The ACMA may charge a fee for providing an opinion under this section.

             (8)  The ACMA must not give an opinion under this section that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.

             (9)  A person must not, in an application under this section, state an opinion that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.

22  Matters to be considered by ACMA

                   In making determinations or clarifications under section 19 in relation to broadcasting services, and in giving opinions under section 21 in relation to broadcasting services, the ACMA is to have regard to:

                     (a)  the geographic coverage of those services; and

                     (b)  the number of persons who receive or are able to receive those services; and

                     (c)  the accessibility of those services, including:

                              (i)  whether those services are encrypted; and

                             (ii)  whether their availability is otherwise restricted, whether because of the high cost of the equipment required to receive those services, the controlled supply of that equipment or otherwise; and

                            (iii)  whether their comprehensibility is otherwise restricted; and

                     (d)  the duration and frequency of the provision of those services, including whether those services are provided for a set period only; and

                     (e)  the nature of the audience to which those services are targeted; and

                      (f)  the nature of the programs being provided by those services, including:

                              (i)  the level of interest in the subject matter of those programs; and

                             (ii)  whether those programs are directed at a specialised audience; and

                            (iii)  the social and cultural impact of those programs; and

                     (g)  such other matters as the ACMA thinks fit.


 

Part 3Planning of the broadcasting services bands

  

23  Planning criteria

                   In performing functions under this Part, the ACMA is to promote the objects of this Act including the economic and efficient use of the radiofrequency spectrum, and is to have regard to:

                     (a)  demographics; and

                     (b)  social and economic characteristics within the licence area, within neighbouring licence areas and within Australia generally; and

                     (c)  the number of existing broadcasting services and the demand for new broadcasting services within the licence area, within neighbouring licence areas and within Australia generally; and

                     (d)  developments in technology; and

                     (e)  technical restraints relating to the delivery or reception of broadcasting services; and

                      (f)  the demand for radiofrequency spectrum for services other than broadcasting services; and

                     (g)  such other matters as the ACMA considers relevant.

24  ACMA to determine priorities

             (1)  Before preparing frequency allotment plans or licence area plans, the ACMA must, by notice in writing, determine priorities, as between particular areas of Australia and as between different parts of the broadcasting services bands, for the preparation of those plans.

             (2)  The ACMA may, by notice in writing, vary priorities.

25  Preparation of frequency allotment plans

             (1)  Where the Minister has, under subsection 31(1) of the Radiocommunications Act 1992, referred a part of the radiofrequency spectrum to the ACMA for planning, the ACMA must prepare in writing a frequency allotment plan that determines the number of channels that are to be available in particular areas of Australia to provide broadcasting services or restricted datacasting services, or both, using that part of the radiofrequency spectrum.

             (2)  The ACMA may, by notice in writing, vary a frequency allotment plan prepared under subsection (1).

          (2A)  If the Minister has, under subsection 31(1A) of the Radiocommunications Act 1992, referred a part of the radiofrequency spectrum to the ACMA for planning, the ACMA must, by legislative instrument, prepare a frequency allotment plan that determines the number of channels that are to be available in particular areas of Australia to provide the following services using that part of the radiofrequency spectrum:

                     (a)  digital commercial radio broadcasting services;

                     (b)  digital community radio broadcasting services;

                     (c)  digital national radio broadcasting services;

                     (d)  restricted datacasting services.

          (2B)  The ACMA may, by legislative instrument, vary a frequency allotment plan prepared under subsection (2A).

             (3)  In preparing or varying a frequency allotment plan, the ACMA must comply with any directions, whether of a general or specific nature, given to the ACMA in writing by the Minister.

             (4)  Sections 23, 24 and 27 do not apply in relation to the preparation or variation of a frequency allotment plan to the extent to which the frequency allotment plan or the variation, as the case may be, relates to any of the following services:

                     (a)  digital commercial radio broadcasting services;

                     (b)  digital community radio broadcasting services;

                     (c)  digital national radio broadcasting services;

                     (d)  restricted datacasting services.

26  Preparation of licence area plans

             (1)  The ACMA must, by legislative instrument, prepare licence area plans that determine the number and characteristics, including technical specifications, of broadcasting services that are to be available in particular areas of Australia with the use of the broadcasting services bands, and those plans must be consistent with the relevant frequency allotment plan.

          (1A)  To the extent to which a licence area plan deals with:

                     (a)  digital commercial radio broadcasting services; or

                     (b)  digital community radio broadcasting services; or

                     (c)  digital national radio broadcasting services;

the licence area plan is not required to determine the technical specifications of those services.

             (2)  The ACMA may, by legislative instrument, vary a licence area plan.

             (3)  If:

                     (a)  a review is conducted under section 35A; and

                     (b)  after the completion of the report of the review, the Minister is satisfied that a licence area plan should be varied in accordance with the recommendations in the report;

the Minister may give the ACMA a written direction requiring the ACMA to vary the licence area plan as specified in the direction.

             (4)  Subsection (3) does not limit subsection (2).

             (5)  The ACMA must comply with a direction under subsection (3).

             (6)  Sections 23 and 27 do not apply in relation to anything done by the ACMA in compliance with a direction under subsection (3).

26A  Licence area plans—multi‑channelled commercial television broadcasting services

             (1)  If:

                     (a)  a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2007; and

                     (b)  the licence authorises the licensee to provide a HDTV multi‑channelled commercial television broadcasting service in the licence area;

the relevant licence area plan is not required to deal with the HDTV multi‑channelled commercial television broadcasting service.

          (1A)  If:

                     (a)  a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2007; and

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

the relevant licence area plan is not required to deal with the SDTV multi‑channelled commercial television broadcasting service.

             (2)  Subsections (1) and (1A) cease to have effect at the end of the simulcast period, or the simulcast‑equivalent period, for the licence area concerned.

             (3)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

simulcast‑equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

26B  Licence area plans—multi‑channelled national television broadcasting services

             (1)  Licence area plans are not required to deal with SDTV multi‑channelled national television broadcasting services.

          (1A)  Licence area plans are not required to deal with HDTV multi‑channelled national television broadcasting services.

             (2)  Subsections (1) and (1A) cease to have effect at the end of the simulcast period, or the simulcast‑equivalent period, for the coverage area concerned.

             (3)  In this section:

HDTV multi‑channelled national television broadcasting service has the same meaning as in Schedule 4.

SDTV multi‑channelled national television broadcasting service has the same meaning as in Schedule 4.

simulcast‑equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

26C  Licence area plans not required to deal with certain digital radio broadcasting services

Commercial radio broadcasting services

             (1)  If:

                     (a)  a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

                     (b)  the licence authorises the licensee to provide digital commercial radio broadcasting services in the licence area;

the relevant licence area plan is not required to deal with those services.

             (2)  If:

                     (a)  the ACMA allocates a digital commercial radio broadcasting licence in accordance with subsection 35D(3); and

                     (b)  the licence authorises the licensee to provide digital commercial radio broadcasting services in the licence area;

the relevant licence area plan is not required to deal with those services.

Community radio broadcasting services

             (3)  If:

                     (a)  a designated community radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence; and

                     (b)  the licence authorises the licensee to provide digital community radio broadcasting services in the licence area;

the relevant licence area plan is not required to deal with those services.

26D  Licence area plans—how digital radio broadcasting services may be dealt with

             (1)  This section applies if a licence area plan deals with:

                     (a)  digital commercial radio broadcasting services; or

                     (b)  digital community radio broadcasting services; or

                     (c)  digital national radio broadcasting services.

             (2)  The licence area plan is not required to identify:

                     (a)  individual digital commercial radio broadcasting services; or

                     (b)  individual digital community radio broadcasting services; or

                     (c)  individual digital national radio broadcasting services.

             (3)  It is sufficient if the licence area plan deals collectively with:

                     (a)  the digital commercial radio broadcasting services; and

                     (b)  the digital community radio broadcasting services; and

                     (c)  the digital national radio broadcasting services;

that, from time to time, are, or are to be, transmitted under the digital radio multiplex transmitter licence or licences issued, or to be issued, in relation to the area concerned.

27  Processes to be public

             (1)  In performing its functions under sections 24, 25 and 26, the ACMA must make provision for wide public consultation.

             (2)  The ACMA is to keep a record of, and make available for public inspection, all advice received by the ACMA, and all assumptions made by the ACMA, in performing its functions under sections 24, 25 and 26.

29  Designation of licence areas

             (1)  Before allocating a new commercial television broadcasting licence, commercial radio broadcasting licence or community broadcasting licence (other than a temporary community broadcasting licence) that is a broadcasting services bands licence, the ACMA is to designate one of the areas referred to in section 26 as the licence area of the licence.

             (2)  If the ACMA varies a licence area plan, the ACMA may vary the designation of the relevant licence areas.

30  ACMA may determine population figures

             (1)  The ACMA may, by notice in writing, determine the licence area population of a licence area.

             (2)  The ACMA may, by notice in writing, determine a number that is to be the population of Australia for the purposes of this Act.

             (3)  In making a determination, the ACMA is to have regard to the most recently published census count prepared by the Australian Statistician.

             (4)  The ACMA is to make a new determination of the licence area population of a licence area if the licence area is changed.

             (5)  The ACMA is to specify, in a determination of the licence area population of a licence area:

                     (a)  the percentage of the population of Australia constituted by that licence area population; and

                     (b)  the percentage of that licence area population that is attributable to an overlap area.

31  Minister may reserve capacity for national broadcasters or community broadcasters

             (1)  The Minister may notify the ACMA in writing that capacity in the broadcasting services bands is to be reserved for a specified number of:

                     (a)  national broadcasting services; or

                     (b)  community broadcasting services (other than services provided by temporary community broadcasting licensees);

but such a notice must not affect the provision of services in accordance with a licence already allocated by the ACMA under this Act or in accordance with a class licence.

             (2)  The ACMA must not, except in accordance with section 34, allocate a licence or determine a class licence that would allow the provision of broadcasting services (other than services provided by national broadcasters or community broadcasting licensees) which would make use of reserved capacity in the broadcasting services bands.

32  Reservations to be disallowable by the Parliament

                   A notice under section 31 is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

33  Development of technical planning guidelines

                   The ACMA is to develop in writing guidelines for the technical planning of individual services that use the broadcasting services bands as a means of delivery.

34  Alternative uses of broadcasting services bands

             (1)  If:

                     (a)  the ACMA has advertised under section 38 for applications for the allocation of one or more commercial television broadcasting licences or commercial radio broadcasting licences that are broadcasting services bands licences and that licence is not allocated or not all of those licences are allocated; or

                     (b)  broadcasting services bands spectrum is available in a licence area but has not been made available for commercial television broadcasting licences or commercial radio broadcasting licences; or

                     (c)  broadcasting services bands spectrum has been reserved under section 31 but has not been made available for the purpose for which it was reserved; or

                     (d)  broadcasting services bands spectrum is available but the ACMA has not commenced or completed planning and allocation processes in relation to that spectrum;

the ACMA may, by written instrument, determine that the part or parts of the radiofrequency spectrum concerned is or are available for allocation, for a period specified by the ACMA:

                     (e)  for the temporary transmission or the re‑transmission of programs; or

                    (ea)  to temporary community broadcasting licensees; or

                      (f)  to providers of subscription broadcasting services, subscription narrowcasting services or open narrowcasting services; or

                    (fa)  for the transmission of datacasting services on a temporary basis; or

                     (g)  for other purposes.

             (2)  In making a determination under subsection (1), the ACMA is to have regard to:

                     (a)  the possible future demand for the use of that part of the radiofrequency spectrum; and

                     (b)  such other matters as the ACMA considers relevant.

             (3)  The ACMA may, by written instrument, determine that a part or parts of the broadcasting services bands spectrum is or are available for allocation for the purposes of the transmission of datacasting services.

             (4)  In making a determination under subsection (3), the ACMA is to have regard to:

                     (a)  the possible future demand for the use of that part of the radiofrequency spectrum for the provision of commercial television broadcasting services; and

                     (b)  such other matters as the ACMA considers relevant.

          (4A)  Each part determined under subsection (3) must be 7 MHz. However, this rule does not prevent a particular part from being determined even if it adjoins:

                     (a)  another part that is also specified in the determination; or

                     (b)  2 other parts that are also specified in the determination.

             (5)  For the purposes of the application of this section to the availability of the spectrum before 1 January 2007, a datacasting service is a datacasting service provided under, and in accordance with the conditions of, a datacasting licence.

             (6)  For the purposes of the application of this section to the availability of the spectrum on or after 1 January 2007, a datacasting service is:

                     (a)  a datacasting service provided under, and in accordance with the conditions of, a datacasting licence; or

                     (b)  a datacasting service provided under any other licence allocated by the ACMA under this Act; or

                     (c)  a datacasting service provided in accordance with a class licence.

35  Notification of decisions under this Part

                   If the ACMA makes an instrument under this Part, the ACMA must publish in the Gazette a notice stating:

                     (a)  that the instrument has been made; and

                     (b)  the places where copies of the instrument can be purchased.


 

Part 4Commercial television broadcasting licences and commercial radio broadcasting licences

  

35A  Reviews about the allocation of new commercial television broadcasting licences

Initial review

             (1)  Before 1 January 2012, the Minister must cause to be conducted a review of:

                     (a)  whether one or more commercial television broadcasting licences that are broadcasting services bands licences should be allocated under section 36 for a particular area or areas of Australia; and

                     (b)  if so, what variations (if any) should be made to any licence area plans in force under section 26.

Subsequent reviews

             (2)  The Minister may cause to be conducted a review of:

                     (a)  whether one or more commercial television broadcasting licences that are broadcasting services bands licences should be allocated under section 36 for a particular area or areas of Australia; and

                     (b)  if so, what variations (if any) should be made to any licence area plans in force under section 26.

             (3)  Subsection (2) does not authorise the conduct of a review before the completion of the report of a review conducted under subsection (1).

Conduct of a review

             (4)  The following matters must be taken into account in conducting a review under subsection (1) or (2):

                     (a)  the objects of this Act;

                     (b)  the matters referred to in paragraphs 23(a) to (f) in so far as they are relevant;

                     (c)  the availability of radiofrequency spectrum;

                     (d)  any other relevant matters.

             (5)  A review under subsection (1) or (2) must be conducted in a manner that provides for wide public consultation.

             (6)  The ACMA must make available such information as is reasonably necessary for the conduct of a review under subsection (1) or (2).

Report of a review

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

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

35B  Allocation of new commercial television broadcasting licences

             (1)  If:

                     (a)  a review is conducted under section 35A; and

                     (b)  after the completion of the report of the review, the Minister is satisfied that a commercial television broadcasting licence should be allocated under section 36 for a particular area of Australia;

the Minister may, within 3 years after the completion of the report of the review, give the ACMA a written direction requiring the ACMA to allocate the licence under section 36 within a specified period.

             (2)  The ACMA must comply with a direction under subsection (1).

             (3)  The ACMA must not allocate a licence under section 36 unless the ACMA is directed to do so under subsection (1) of this section.

             (4)  If:

                     (a)  a direction is given under subsection (1); and

                     (b)  as a result, the ACMA allocates a commercial television broadcasting licence under section 36;

the licence is subject to the condition that the licensee may only provide commercial television broadcasting services in digital mode (within the meaning of Schedule 4).

35C  Digital radio moratorium

             (1)  During the digital radio moratorium period for a licence area, the ACMA must not allocate, under subsection 36(1), a commercial radio broadcasting licence to provide digital commercial radio broadcasting services in the licence area.

             (2)  Subsection (1) has effect subject to section 35D.

             (3)  For the purposes of this Act, the digital radio moratorium period for a licence area is the 6‑year period beginning at the start of the digital radio start‑up day for the licence area.

35D  Exception to the digital radio moratorium—failure to provide a digital commercial radio broadcasting service

Scope

             (1)  This section applies to a commercial radio broadcasting licence if:

                     (a)  the licence was in force immediately before the digital radio start‑up day for the licence area; and

                     (b)  the licence authorises the licensee to provide any digital commercial radio broadcasting services in the licence area; and

                     (c)  at a particular time (the relevant time) during the digital radio moratorium period for the licence area, the ACMA is satisfied that the licensee is not providing at least one digital commercial radio broadcasting service under the licence in the licence area.

Licence ceases to authorise the provision of digital commercial radio broadcasting services etc.

             (2)  As soon as practicable after the relevant time, the ACMA must, by written notice given to the licensee, determine that:

                     (a)  the licence ceases to authorise the licensee to provide one or more digital commercial radio broadcasting services in the licence area; and

                     (b)  the licence is taken, for the purposes of this Act, to have been allocated as a licence to provide an analog commercial radio broadcasting service; and

                     (c)  despite subsection 36A(5), the licence is subject to the condition that the licensee may only provide an analog commercial radio broadcasting service under the licence.

ACMA must allocate a new commercial radio broadcasting licence for the licence area

             (3)  As soon as practicable after a notice under subsection (2) is given to a licensee of a commercial radio broadcasting licence (the first licence), the ACMA must:

                     (a)  allocate, under subsection 36(1), a single commercial radio broadcasting licence for the licence area of the first licence; and

                     (b)  allocate the licence as a licence to provide digital commercial radio broadcasting services in that licence area.

ACMA may specify circumstances in which a licensee is taken to be providing a digital commercial radio broadcasting service

             (4)  The ACMA may, by legislative instrument, specify circumstances in which a commercial radio broadcasting licensee is taken, for the purposes of paragraph (1)(c), to be providing a digital commercial radio broadcasting service under the licence in the licence area.

             (5)  A copy of an instrument under subsection (4) must be made available on the ACMA’s website.

36  ACMA to determine system for allocating licences

             (1)  The ACMA is to determine in writing a price‑based system for allocating:

                     (a)  commercial television broadcasting licences that are broadcasting services bands licences; and

                     (b)  commercial radio broadcasting licences that are broadcasting services bands licences.

             (2)  The Minister may give specific directions to the ACMA for the purpose of a determination.

             (3)  Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.

             (4)  If a commercial television broadcasting licence or a commercial radio broadcasting licence referred to in subsection (1) is allocated, the ACMA must, unless the allocation system adopted was public, publish in the Gazette the name of the successful applicant and the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.

36A  Commercial radio broadcasting licences to provide analog or digital commercial radio broadcasting services

Licences in force immediately before the commencement of this section

             (1)  If a commercial radio broadcasting licence was in force immediately before the commencement of this section, the licence is taken, for the purposes of this Act, to have been allocated as a licence to provide an analog commercial radio broadcasting service.

Licences allocated before the digital radio start‑up day for the licence area

             (2)  If the ACMA allocates a commercial radio broadcasting licence after the commencement of this section but before the digital radio start‑up day for the licence area, the licence must be allocated as a licence to provide an analog commercial radio broadcasting service.

Licences allocated on or after digital radio start‑up day for the licence area

             (3)  If the ACMA allocates a commercial radio broadcasting licence on or after the digital radio start‑up day for the licence area, the licence must be allocated as:

                     (a)  a licence to provide an analog commercial radio broadcasting service; or

                     (b)  a licence to provide digital commercial radio broadcasting services.

Licence conditions

             (4)  Subject to subsection (5), if a commercial radio broadcasting licence is or was allocated as a licence to provide an analog commercial radio broadcasting service, the licence is subject to the condition that the licensee may only provide an analog commercial radio broadcasting service under the licence.

             (5)  If:

                     (a)  a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

                     (b)  the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;

subsection (4) ceases to apply in relation to the licence at the start of the digital radio start‑up day for the licence area.

             (6)  If a commercial radio broadcasting licence is allocated as a licence to provide digital commercial radio broadcasting services, the licence is subject to the condition that the licensee may only provide digital commercial radio broadcasting services under the licence.

Section 35D

             (7)  This section has effect subject to section 35D.

Subsection 40(1) licences

             (8)  This section does not apply to a commercial radio broadcasting licence that is or was allocated under subsection 40(1).

37  When licences must not be allocated

             (1)  A licence is not to be allocated to an applicant if:

                     (a)  the applicant is not a company that is formed in Australia or in an external Territory and has a share capital; or

                     (b)  the ACMA decides that subsection 41(2) applies to the applicant.

             (2)  Paragraph (1)(b) does not require the ACMA to consider the application of section 41 in relation to an applicant before allocating a licence to the applicant.

38  ACMA to advertise for applications for certain licences

             (1)  Where the ACMA is going to allocate one or more commercial television broadcasting licences or commercial radio broadcasting licences referred to in subsection 36(1), the ACMA is to advertise, in a manner determined by the ACMA, for applications for licences of that kind, and is to include in the advertisements:

                     (a)  the date before which applications must be received by the ACMA; and

                     (b)  a statement specifying how details of:

                              (i)  the system determined under section 36; and

                             (ii)  the conditions that are to apply to the licence; and

                            (iii)  the licence area of the licence, the licence area population of the licence and any areas of overlap with other licence areas;

                            can be obtained.

             (2)  Applications must:

                     (a)  be in accordance with a form approved in writing by the ACMA; and

                     (b)  be accompanied by the application fee determined in writing by the ACMA.

38A  Additional commercial television licences in single markets

Circumstances in which existing licensee may apply for additional licence

             (1)  If:

                     (a)  a particular licence area is the licence area of only one commercial television broadcasting licence (the parent licence) that is in force; and

                     (b)  additional commercial television broadcasting licences can be allocated for the licence area;

the existing licensee may apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.

ACMA must grant additional licence

             (2)  As soon as practicable, the ACMA must allocate an additional commercial television broadcasting licence to the existing licensee for the licence area, so long as:

                     (a)  all of the following conditions are satisfied:

                              (i)  no licence for the licence area previously allocated under this section to the existing licensee has been cancelled because of a breach of the condition set out in paragraph 7(1)(i) of Schedule 2;

                             (ii)  no licence for the licence area previously held by the existing licensee has been cancelled because of a breach of the condition set out in subsection (9);

                            (iii)  no licence for the licence area previously held by the existing licensee has been surrendered; or

                     (b)  both:

                              (i)  paragraph (a) does not apply; and

                             (ii)  the ACMA is satisfied that there are exceptional circumstances.

Amalgamation of licence areas in some cases

             (7)  If:

                     (a)  more than 30% of the licence area population of a licence area is attributable to an overlap area; or

                     (b)  a licence area is entirely within another licence area;

this section applies as if the 2 licence areas were one.

Fee for additional licence

             (8)  On allocation of the additional licence, the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.

Licence conditions

             (9)  On the allocation of the additional licence, it becomes a condition of both the parent licence and the additional licence that the licensee will continue to provide at least one service under each of those licences for at least 2 years after the date of allocation of the additional licence.

Restrictions on transfer of licences

           (10)  During the period of 2 years after the date of allocation of the additional licence, any attempt by any person to transfer either the parent licence or the additional licence is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.

Section 37 restrictions apply

           (11)  This section has effect subject to section 37.

38B  Additional commercial television licences in 2‑station markets

             (1)  If:

                     (a)  a particular licence area is the licence area of only 2 commercial television broadcasting licences (the parent licences) that are in force; and

                     (b)  neither of those licences was allocated under section 38A; and

                     (c)  an additional commercial television broadcasting licence can be allocated for the licence area;

then, within 90 days after the designated time for the licence area:

                     (d)  the existing licensees may give the ACMA a joint written notice stating that:

                              (i)  a company specified in the notice (the joint‑venture company) will apply for an additional commercial television broadcasting licence for the licence area; and

                             (ii)  the joint‑venture company is jointly owned by the existing licensees; and

                            (iii)  the joint‑venture company is formed in Australia or an external Territory and has a share capital; or

                     (e)  each existing licensee may give the ACMA a written notice stating that the licensee will apply separately for an additional commercial television broadcasting licence for the licence area.

Application by joint‑venture company

             (2)  If a notice is given under paragraph (1)(d), the joint‑venture company may, within 12 months after the designated time for the licence area, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.

Separate applications by existing licensees

             (3)  If an existing licensee gives a notice under paragraph (1)(e), the licensee may, within 12 months after the designated time for the licence area, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.

Allocation of additional licence to joint‑venture company

             (5)  As soon as practicable after receiving an application under subsection (2), the ACMA must allocate an additional commercial television broadcasting licence to the joint‑venture company for the licence area, so long as the ACMA is satisfied that the joint‑venture company is jointly owned by the existing licensees.

Allocation of additional licence to existing licensee

             (6)  If the ACMA has received applications from both of the existing licensees under subsection (3), the ACMA must allocate an additional commercial television broadcasting licence to one of those licensees for the licence area in accordance with a price‑based system determined under subsection (10).

             (7)  If:

                     (a)  each existing licensee gives a notice under paragraph (1)(e); and

                     (b)  by the end of the 12‑month period beginning at the designated time for the licence area:

                              (i)  the ACMA has received an application from only one existing licensee (the first licensee) under subsection (3); and

                             (ii)  the ACMA has not received a notice from the other existing licensee stating that it will not be applying under subsection (3);

the ACMA must, as soon as practicable after the end of that 12‑month period, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.

             (8)  If:

                     (a)  each existing licensee gives a notice under paragraph (1)(e); and

                     (b)  before the end of the 12‑month period beginning at the designated time for the licence area, the ACMA receives:

                              (i)  an application from one existing licensee (the first licensee) under subsection (3); and

                             (ii)  a notice from the other existing licensee stating that it will not be applying under subsection (3);

the ACMA must, as soon as practicable after both have been received, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.

             (9)  If only one existing licensee gives a notice under paragraph (1)(e), then, as soon as practicable after receiving an application under subsection (3) from that licensee, the ACMA must allocate an additional commercial television broadcasting licence to that licensee for the licence area.

Price‑based system for allocating licences where separate applications have been received

           (10)  The ACMA may determine in writing a price‑based system for allocating commercial television broadcasting licences under subsection (6).

           (11)  The Minister may give specific directions to the ACMA for the purpose of a determination.

           (12)  Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.

           (13)  If a commercial television broadcasting licence is allocated under subsection (6), the ACMA must, unless the allocation system adopted was public, publish in the Gazette:

                     (a)  the name of the successful applicant; and

                     (b)  the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.

Amalgamation of licence areas in some cases

           (14)  The ACMA may, by writing, determine that, if:

                     (a)  more than 30% of the licence area population of a specified licence area is attributable to a specified overlap area; or

                     (b)  a specified licence area is entirely within another specified licence area;

this section applies as if the 2 licence areas were one.

        (14A)  If a determination is made under subsection (14) for 2 licence areas that are remote licence areas (within the meaning of Schedule 4) because of paragraph (14)(b), this section applies as if the single licence area referred to in subsection (14) were the licence area that is entirely within the other licence area.

           (15)  A determination under subsection (14) has effect accordingly.

           (16)  A determination under subsection (14) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Fee for additional licence

           (17)  On allocation of the additional licence under subsection (5), (7), (8) or (9), the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.

Licence conditions

           (18)  Each additional licence allocated under this section is subject to the following conditions:

                     (a)  the licensee may only provide commercial television broadcasting services in digital mode (within the meaning of Schedule 4); and

                     (b)  if the licence area for the licence is wholly outside a remote licence area (within the meaning of Schedule 4)—the licensee will commence to provide at least one commercial television broadcasting service in SDTV digital mode (within the meaning of Schedule 4) by whichever is the earlier of the following times:

                              (i)  the time that is notified in writing to the licensee by the ACMA;

                             (ii)  the start of 1 January 2004; and

                     (c)  if the licence area for the licence is not of the kind mentioned in paragraph (b)—the licensee will commence to provide at least one commercial television broadcasting service in SDTV digital mode (within the meaning of Schedule 4) within 1 year of being allocated the licence or within such longer period as is notified in writing by the ACMA.

           (19)  Paragraphs 7(1)(i), 7(1)(l) and 7(1)(m) of Schedule 2 do not apply to an additional licence allocated under this section.

           (20)  On the allocation of an additional licence under subsection (5), it becomes a condition of:

                     (a)  the additional licence; and

                     (b)  each parent licence;

that the licensee concerned will continue to provide at least one service under the licence concerned for at least 2 years after the earliest occasion on which the licensee of the additional licence commences to provide a commercial television broadcasting service under the additional licence.

           (21)  On the allocation of an additional licence under subsection (6), (7), (8) or (9), it becomes a condition of:

                     (a)  the additional licence; and

                     (b)  the parent licence concerned;

that the licensee will continue to provide at least one service under the licence concerned for at least 2 years after the earliest occasion on which the licensee of the additional licence commences to provide a commercial television broadcasting service under the additional licence.

        (21A)  The condition specified in subsection (21B) applies if:

                     (a)  a commercial television broadcasting licence is allocated to a joint‑venture company under subsection (5); and

                     (b)  the licence is transferred to another company (the transferee company); and

                     (c)  an election is in force under subclause 6(7B) of Schedule 4 in relation to any or all of the commercial television broadcasting services provided under the licences referred to in subsection (1) as the parent licences.

        (21B)  The licence held by the transferee company is subject to the condition that the transferee company will continue to transmit at least one commercial television broadcasting service provided under a parent licence in relation to which that election is in force.

Restrictions on transfer of licences

           (22)  During the period of 2 years after the date of allocation of an additional licence under subsection (5), any attempt by any person to transfer the additional licence is of no effect.

           (23)  During the period of 2 years after the date of allocation of an additional licence under subsection (6), (7), (8) or (9), any attempt by any person to transfer either:

                     (a)  the additional licence; or

                     (b)  the parent licence concerned;

is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.

Section 37 restrictions apply

           (24)  This section has effect subject to section 37.

Jointly owned company

           (25)  For the purposes of this section, a company (the first company) is jointly owned by 2 other companies if, and only if, each share in the first company is beneficially owned by either or both of those other companies.

Designated time

           (26)  In this section:

designated time, in relation to a licence area, means:

                     (a)  if the licence area is wholly outside a remote licence area (within the meaning of Schedule 4)—the commencement of this section; or

                     (b)  in any other case—the time determined by the ACMA in relation to the licence area under subsection (27).

           (27)  The ACMA may, by writing, determine a time in relation to a licence area for the purposes of the definition of designated time in paragraph (26)(b).

           (28)  For a licence area that is not a remote licence area (within the meaning of Schedule 4), the time determined under subsection (27) must be no later than 1 January 2006.

39  Additional commercial radio licences in single markets

Conditions for allocation of additional licence

             (1)  If:

                     (a)  a particular licence area is the licence area of only one commercial radio broadcasting licence (the parent licence) that is in force; and

                     (b)  a service is being provided under the parent licence; and

                     (c)  the licence area for the parent licence does not have an excessive overlap area, as determined under subsection (5); and

                     (d)  the licensee requests the ACMA, in writing, to allocate to the licensee, for the same licence area, another commercial radio broadcasting licence that is a broadcasting services bands licence; and

                     (e)  in the opinion of the ACMA, suitable broadcasting services bands spectrum is available for providing another commercial radio broadcasting service in the same licence area;

the ACMA must allocate an additional licence to the applicant for the same licence area as soon as practicable.

Time limit for applications

             (2)  An application under subsection (1) must be made within 60 days after:

                     (a)  the commencement of this section; or

                     (b)  the time when paragraphs (1)(a), (b) and (c) are first satisfied in relation to the parent licence;

whichever is later.

             (3)  If the conditions in paragraphs (1)(a), (b), (c) and (e) are not all satisfied at the time when the application is made, but at a later time they are all satisfied, then the ACMA is under an obligation at that later time to allocate the additional licence (unless the application has been withdrawn).

Matters that ACMA must take into account

             (4)  The matters that the ACMA must take into account in forming an opinion for the purposes of paragraph (1)(e) include the following:

                     (a)  any relevant plan under section 25;

                     (b)  any relevant plan under section 26;

                     (c)  any relevant capacity that has been reserved under section 31.

Excessive overlap area

             (5)  The licence area for the parent licence has an excessive overlap area if:

                     (a)  more than 30% of the licence area population of the licence area of the parent licence is attributable to an area that overlaps with the licence area of another commercial radio broadcasting licence; and

                     (b)  at least one of the following situations exists:

                              (i)  more than 30% of the licence area population of the licence area of that other licence is also attributable to the area that overlaps with the licence area of the parent licence;

                             (ii)  more than one commercial radio broadcasting licence is in force with the same licence area as that other licence.

Technical specifications for additional licence

             (6)  The ACMA must make a determination in writing setting out the technical specifications that apply to the additional licence. The ACMA is not required to make the determination if a plan under section 26 applies to the licence area of the additional licence.

             (7)  For the purposes of this Act and section 109 of the Radiocommunications Act 1992, the technical specifications are taken to have been determined under section 26 of this Act.

Fee for additional licence

             (8)  On allocation of the additional licence, the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.

Licence conditions

             (9)  On the allocation of the additional licence, it becomes a condition of both the parent licence and the additional licence that the licensee will continue to provide services under those licences for at least 2 years after the date of allocation of the additional licence.

Restrictions on transfer of licences

           (10)  During the period of 2 years after the date of allocation of the additional licence, any attempt by any person to transfer either the parent licence or the additional licence is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.

Section 37 restrictions apply

           (11)  This section has effect subject to section 37.

Section 29 does not apply in some cases

           (12)  If the licence area of the parent licence is not provided for under a licence area plan under section 26, then section 29 does not apply to the allocation of the additional licence.

40  Allocation of other licences

             (1)  Subject to section 28, the ACMA may allocate to a person, on application in writing by the person, a commercial television broadcasting licence or a commercial radio broadcasting licence that is not a licence referred to in subsection 36(1).

          (1A)  Licences under subsection (1) are to be allocated on the basis of one licence per service.

             (2)  Before allocating a licence referred to in subsection (1), the ACMA is to designate a particular area in Australia as the licence area of the licence.

             (3)  Applications must:

                     (a)  be in accordance with a form approved in writing by the ACMA; and

                     (b)  be accompanied by the application fee determined in writing by the ACMA.

             (4)  If the ACMA makes a decision under subsection (1) or (2), the ACMA must publish in the Gazette details of the allocation or the designation of a licence area.

Referral of application to the Minister

             (5)  Before allocating a commercial television broadcasting licence under subsection (1), the ACMA must refer the application to the Minister.

             (6)  If an application for a commercial television broadcasting licence is referred to the Minister under subsection (5), the ACMA must not make a decision about the application until the Minister:

                     (a)  gives a direction under subsection (7) in relation to the application; or

                     (b)  gives a notice under subsection (9) in relation to the application.

             (7)  If:

                     (a)  an application for a commercial television broadcasting licence is referred to the Minister under subsection (5); and

                     (b)  the Minister is of the opinion that the proposed commercial television broadcasting service is likely to be contrary to the public interest;

the Minister must, by written notice given to the ACMA, direct the ACMA not to allocate the licence to the applicant.

             (8)  The ACMA must comply with a direction under subsection (7).

             (9)  If:

                     (a)  an application for a commercial television broadcasting licence is referred to the Minister under subsection (5); and

                     (b)  the Minister is not of the opinion that the proposed commercial television broadcasting service is likely to be contrary to the public interest;

the Minister must, by written notice given to the ACMA, inform the ACMA that he or she has no objection to the allocation of the licence to the applicant.

Minister may request additional information

           (10)  If an application is referred to the Minister under subsection (5), and the Minister considers that additional information is required before the Minister can decide whether to:

                     (a)  give a direction under subsection (7) in relation to the application; or

                     (b)  give a notice under subsection (9) in relation to the application;

the Minister may, by written notice given to the applicant within 30 days after the day on which the application is referred to the Minister, request the applicant to provide that information.

           (11)  If the Minister requests additional information under subsection (10), the Minister must give the ACMA a copy of the request.

Decision to be made within 60 days

           (12)  If the Minister does not, within 60 days after the day on which:

                     (a)  an application is referred to the Minister under subsection (5); or

                     (b)  if the Minister requests additional information under subsection (10)—that additional information is received;

do either of the following:

                     (c)  give a direction under subsection (7) in relation to the application;

                     (d)  give a notice under subsection (9) in relation to the application;

then the Minister is taken to have given a notice under subsection (9) in relation to the application.

Licence condition

           (13)  If the ACMA allocates a commercial television broadcasting licence under subsection (1), the licence is subject to the condition that the licensee may only provide the commercial television broadcasting service concerned in digital mode (within the meaning of Schedule 4).

41  When persons are regarded as suitable

             (1)  For the purposes of this Part, a company is a suitable licensee or a suitable applicant for a licence if the ACMA has not decided that subsection (2) applies to the company.

             (2)  The ACMA may, if it is satisfied that allowing a particular company to provide or continue to provide commercial broadcasting services under a licence would lead to a significant risk of:

                     (a)  an offence against this Act or the regulations being committed; or

                    (aa)  a breach of a civil penalty provision occurring; or

                     (b)  a breach of the conditions of the licence occurring;

decide that this subsection applies to the company.

             (3)  In deciding whether such a risk exists, the ACMA is to take into account:

                     (a)  the business record of the company; and

                     (b)  the company’s record in situations requiring trust and candour; and

                     (c)  the business record of each person who is, or would be, if a licence were allocated to the applicant, in a position to control the licence; and

                     (d)  the record in situations requiring trust and candour of each such person; and

                     (e)  whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and

                      (f)  whether a civil penalty order has been made against:

                              (i)  the company; or

                             (ii)  a person referred to in paragraph (c) or (d).

             (4)  This section does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).

41A  Services authorised by commercial television broadcasting licences before 1 January 2009

Licences in force immediately before 1 January 2007

             (1)  If:

                     (a)  a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2007; and

                     (b)  the licence authorised the licensee to provide a commercial television broadcasting service (the core commercial television broadcasting service) in the licence area;

the licence is taken to authorise the licensee to provide the following 2 services in the licence area:

                     (c)  the core commercial television broadcasting service;

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

during the period ending immediately before 1 January 2009.

Licences allocated on or after 1 January 2007

             (2)  If a commercial television broadcasting licence for a licence area is allocated on or after 1 January 2007 but before 1 January 2009, the licence authorises the licensee to provide the following 2 services in the licence area:

                     (a)  a commercial television broadcasting service (the core commercial television broadcasting service) transmitted in SDTV digital mode;

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

during the period ending immediately before 1 January 2009.

Licences allocated under subsection 40(1)

             (3)  This section does not apply to a commercial television broadcasting licence allocated under subsection 40(1).

Definitions

             (4)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

SDTV digital mode has the same meaning as in Schedule 4.

41B  Services authorised by commercial television broadcasting licences during so much of the simulcast period etc. as occurs on or after 1 January 2009

Licences in force immediately before 1 January 2009

             (1)  If:

                     (a)  a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2009; and

                     (b)  the licence authorised the licensee to provide the following 2 services in the licence area:

                              (i)  the core commercial television broadcasting service;

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

the licence is taken to authorise the licensee to provide the following 3 services in the licence area:

                     (c)  the core commercial television broadcasting service;

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

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

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

Licences allocated on or after 1 January 2009

             (2)  If a commercial television broadcasting licence for a licence area is allocated on or after 1 January 2009 but before the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

the licence authorises the licensee to provide the following 3 services in the licence area:

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

                     (d)  2 SDTV multi‑channelled commercial television broadcasting services;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

Licences allocated under subsection 40(1)

             (3)  This section does not apply to a commercial television broadcasting licence allocated under subsection 40(1).

Definitions

             (4)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

simulcast‑equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

41C  Services authorised by commercial television broadcasting licences after the end of the simulcast period etc.

Licences in force immediately before the end of the simulcast period etc.

             (1)  If a commercial television broadcasting licence for a licence area was in force immediately before the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

then, after the end of the applicable period, the licence is taken to authorise the licensee to provide the following services in the licence area:

                     (c)  one or more HDTV multi‑channelled commercial television broadcasting services;

                     (d)  one or more SDTV multi‑channelled commercial television broadcasting services.

Licences allocated after the end of the simulcast period etc.

             (2)  If a commercial television broadcasting licence for a licence area is allocated after the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

the licence authorises the licensee to provide the following services in the licence area:

                     (c)  one or more HDTV multi‑channelled commercial television broadcasting services;

                     (d)  one or more SDTV multi‑channelled commercial television broadcasting services.

Licences allocated under subsection 40(1)

             (3)  This section does not apply to a commercial television broadcasting licence allocated under subsection 40(1).

Definitions

             (4)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

simulcast‑equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

41D  Services authorised by commercial radio broadcasting licences

Licences in force immediately before the commencement of this section

             (1)  If:

                     (a)  a commercial radio broadcasting licence was in force immediately before the commencement of this section; and

                     (b)  the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;

then, during the period:

                     (c)  beginning at the start of the day on which this section commences; and

                     (d)  ending immediately before the digital radio start‑up day for the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

Licences allocated on or after the commencement of this section

             (2)  If:

                     (a)  a commercial radio broadcasting licence is allocated on or after the commencement of this section but before the digital radio start‑up day for the licence area; and

                     (b)  the licence is allocated as a licence to provide an analog commercial radio broadcasting service in the licence area;

then, during the period:

                     (c)  beginning at the start of the day on which the licence is allocated; and

                     (d)  ending immediately before the digital radio start‑up day for the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

Licences in force immediately before the digital radio start‑up day for the licence area

             (3)  If:

                     (a)  a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

                     (b)  the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;

then, on and after the digital radio start‑up day for the licence area, the licence is taken to authorise the licensee to provide the following services in the licence area:

                     (c)  the analog commercial radio broadcasting service;

                     (d)  one or more digital commercial radio broadcasting services.

Licences allocated on or after digital radio start‑up day for the licence area

             (4)  If:

                     (a)  a commercial radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and

                     (b)  the licence is allocated as a licence to provide an analog commercial radio broadcasting service in the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

             (5)  If:

                     (a)  a commercial radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and

                     (b)  the licence is allocated as a licence to provide digital commercial radio broadcasting services in the licence area;

the licence is taken to authorise the licensee to provide one or more digital commercial radio broadcasting services in the licence area.

Section 35D

             (6)  This section has effect subject to section 35D.

Subsection 40(1) licences

             (7)  This section does not apply to a commercial radio broadcasting licence allocated under subsection 40(1).

42  Conditions of commercial broadcasting licences

             (1)  Each commercial television broadcasting licence is subject to:

                     (a)  the conditions set out in Part 3 of Schedule 2; and

                     (b)  such other conditions as are imposed under section 43.

             (2)  Each commercial radio broadcasting licence is subject to:

                     (a)  the conditions set out in Part 4 of Schedule 2; and

                     (b)  such other conditions as are imposed under section 43.

43  ACMA may impose additional conditions

             (1)  The ACMA may, by notice in writing given to a commercial television broadcasting licensee or a commercial radio broadcasting licensee, vary or revoke a condition of the licence or impose an additional condition on the licence.

             (2)  If the ACMA proposes to vary or revoke a condition or to impose a new condition, the ACMA must:

                     (a)  give to the licensee written notice of its intention; and

                     (b)  give to the licensee a reasonable opportunity to make representations to the ACMA in relation to the proposed action; and

                     (c)  publish the proposed changes in the Gazette.

             (3)  This section does not allow the ACMA to vary or revoke a condition set out in Part 3 or 4 of Schedule 2.

             (4)  If the ACMA varies or revokes a condition or imposes a new condition, the ACMA must publish the variation, the fact of the revocation or the new condition, as the case may be, in the Gazette.

             (5)  Action taken under subsection (1) must not be inconsistent with:

                     (a)  determinations and clarifications under section 19; or

                     (b)  conditions set out in Part 3 or 4 of Schedule 2.

43A  Material of local significance—regional aggregated commercial television broadcasting licences

             (1)  The ACMA must ensure that, at all times on and after 1 January 2008, there is in force under section 43 a condition that has the effect of requiring the licensee of a regional aggregated commercial television broadcasting licence to broadcast to each local area, during such periods as are specified in the condition, at least a minimum level of material of local significance.

             (2)  For the purposes of subsection (1), a regional aggregated commercial television broadcasting licence is a commercial television broadcasting licence for any of the following licence areas:

                     (a)  Northern New South Wales;

                     (b)  Southern New South Wales;

                     (c)  Regional Victoria;

                     (d)  Eastern Victoria;

                     (e)  Western Victoria;

                      (f)  Regional Queensland;

                     (g)  Tasmania.

             (3)  The condition must define local area and material of local significance for the purposes of the condition. The definition of material of local significance must be broad enough to cover news that relates directly to the local area concerned.

             (4)  To avoid doubt, this section does not:

                     (a)  prevent the condition from setting out different requirements for different types of material; or

                     (b)  prevent the condition from specifying periods that recur (for example, the hours between 7 am and 10 am Monday to Friday); or

                     (c)  prevent the condition from setting out different requirements for different periods; or

                     (d)  create any obligations under subsection 43(2) that would not exist apart from this section.

             (5)  Subsection 43(5) does not apply to the condition.

             (6)  This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.

43B  Local presence—regional commercial radio broadcasting licences

             (1)  The ACMA must ensure that, at all times after the commencement of this section, there is in force under section 43 a condition that has the effect of requiring that, if a trigger event for a regional commercial radio broadcasting licence occurs, then, after the occurrence of the event, the licensee must maintain at least the existing level of local presence.

             (2)  The condition must define existing level of local presence for the purposes of the condition.

             (3)  The definition must deal with:

                     (a)  staffing levels; and

                     (b)  studios and other production facilities.

             (4)  Subsection (3) does not limit subsection (2).

             (5)  To avoid doubt, this section does not create any obligations under subsection 43(2) that would not exist apart from this section.

             (6)  Subsection 43(5) does not apply to the condition.

             (7)  This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.

             (8)  The Minister may give the ACMA a written direction about the fulfilment of the obligation imposed on the ACMA by this section.

             (9)  The ACMA must comply with a direction under subsection (8).

           (10)  In this section:

regional commercial radio broadcasting licence has the same meaning as in Division 5C of Part 5.

staff includes individuals engaged as independent contractors.

trigger event has the same meaning as in Division 5C of Part 5.

43C  Local content—regional commercial radio broadcasting licences

             (1)  The ACMA must ensure that, at all times on and after 1 January 2008, there is in force under section 43 a condition that has the effect of requiring the licensee of a regional commercial radio broadcasting licence to broadcast, during daytime hours each business day, at least the applicable number of hours of material of local significance.

Material of local significance

             (2)  The condition must define material of local significance for the purposes of the condition. If a regional commercial radio broadcasting licensee is required to comply with section 61CD, the definition of material of local significance must be broad enough to cover material that the licensee must broadcast in order to comply with that section.

Applicable number

             (3)  For the purposes of the application of subsection (1) to a regional commercial radio broadcasting licence, the applicable number is:

                     (a)  4.5; or

                     (b)  if the Minister, by legislative instrument, declares that another number is the applicable number for regional commercial radio broadcasting licences generally—the other number; or

                     (c)  if:

                              (i)  the Minister, by legislative instrument, declares that another number is the applicable number for a specified class of regional commercial radio broadcasting licences; and

                             (ii)  the regional commercial radio broadcasting licence is included in that class;

                            the other number.

             (4)  Before 30 June 2007, the Minister must cause to be conducted a review of:

                     (a)  whether:

                              (i)  a declaration should be made under paragraph (3)(b); or

                             (ii)  one or more declarations should be made under subparagraph (3)(c)(i); and

                     (b)  the number or numbers that should be specified in the declaration or declarations concerned; and

                     (c)  in the case of a declaration or declarations under subparagraph (3)(c)(i)—the class or classes that should be specified in the declaration or declarations concerned.

          (4A)  The Minister must cause to be prepared a report of a review under subsection (4).

          (4B)  The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the report.

          (4C)  Before the end of whichever of the following periods ends first:

                     (a)  the period of 15 sitting days of the House of Representatives after the completion of the report;

                     (b)  the period of 15 sitting days of the Senate after the completion of the report;

the Minister must:

                     (c)  either:

                              (i)  make a declaration under paragraph (3)(b); or

                             (ii)  make one or more declarations under subparagraph (3)(c)(i); and

                     (d)  cause a copy of each such declaration to be laid before each House of the Parliament in accordance with section 38 of the Legislative Instruments Act 2003.

Section 43 powers etc.

             (5)  To avoid doubt, this section does not create any obligations under subsection 43(2) that would not exist apart from this section.

             (6)  Subsection 43(5) does not apply to the condition.

             (7)  This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.

Definitions

             (8)  In this section:

daytime hours means the hours:

                     (a)  beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and

                     (b)  ending at 6 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

metropolitan licence area means:

                     (a)  a licence area in which is situated the General Post Office of the capital city of:

                              (i)  New South Wales; or

                             (ii)  Victoria; or

                            (iii)  Queensland; or

                            (iv)  Western Australia; or

                             (v)  South Australia; or

                     (b)  the licence area known as Western Suburbs Sydney RA1.

regional commercial radio broadcasting licence means a commercial radio broadcasting licence that has a regional licence area.

regional licence area means a licence area that is not a metropolitan licence area.

43D  Special licence conditions relating to digital radio commercial broadcasting services

Scope

             (1)  This section applies to a commercial radio broadcasting licence (the first licence) if:

                     (a)  the first licence authorises the licensee to provide one or more digital commercial radio broadcasting services; and

                     (b)  the first licence was not allocated under subsection 40(1).

Transmission by multiplex transmitter

             (2)  The first licence is subject to the condition that the licensee must not provide a digital commercial radio broadcasting service under the first licence unless:

                     (a)  the service is transmitted using a multiplex transmitter; and

                     (b)  the operation of the multiplex transmitter is authorised by a digital radio multiplex transmitter licence.

Use of more than one‑ninth of multiplex capacity

             (3)  If there is only one digital radio multiplex transmitter licence for the licence area of the first licence, the first licence is subject to the condition that the licensee of the first licence must not use more than one‑ninth of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing, under the first licence, a digital commercial radio broadcasting service that passes the shared content test in relation to an analog commercial radio broadcasting service provided under:

                     (a)  the first licence; or

                     (b)  another commercial radio broadcasting licence that has the same licence area as the first licence.

             (4)  If there are 2 or more digital radio multiplex transmitter licences for the licence area of the first licence, the first licence is subject to the condition that the licensee of the first licence must not use more than the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences for the purpose of providing, under the first licence, a digital commercial radio broadcasting service that passes the shared content test in relation to an analog commercial radio broadcasting service provided under:

                     (a)  the first licence; or

                     (b)  another commercial radio broadcasting licence that has the same licence area as the first licence.

             (5)  For the purposes of subsection (4), the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences is as follows:

Shared content test

             (6)  For the purposes of subsections (3) and (4), a digital commercial radio broadcasting service passes the shared content test at a particular time in relation to an analog commercial radio broadcasting service if:

                     (a)  the program content of at least 50% of the total number of hours of programs broadcast by the first‑mentioned service during daytime/evening hours during the 6‑month period ending at that time;

were the same as:

                     (b)  the program content of at least 50% of the total number of hours of programs broadcast by the other service during daytime/evening hours during the 6‑month period ending at that time.

             (7)  For the purposes of subsection (6), ignore the following:

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

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

                     (c)  any digital program enhancement content in relation to a radio program;

                     (d)  community information material or community promotional material;

                     (e)  a news break or weather bulletin;

                      (f)  any other similar material.

Definitions

             (8)  In this section:

category 1 digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.

category 2 digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.

daytime/evening hours means the hours:

                     (a)  beginning at 6 am each day; and

                     (b)  ending at midnight on the same day.

digital radio multiplex transmitter licence means:

                     (a)  a category 1 digital radio multiplex transmitter licence; or

                     (b)  a category 2 digital radio multiplex transmitter licence.

44  Matters to which conditions may relate

             (1)  Conditions of commercial television broadcasting licences and commercial radio broadcasting licences must be relevant to the broadcasting services to which those licences relate.

             (2)  Without limiting the range of conditions that may be imposed, the ACMA may impose a condition on a commercial television broadcasting licensee or a commercial radio broadcasting licensee:

                     (a)  requiring the licensee to comply with a code of practice that is applicable to the licensee; or

                     (b)  designed to ensure that a breach of a condition by the licensee does not recur.

45  Duration of licences

                   Subject to Part 10, commercial television broadcasting licences and commercial radio broadcasting licences remain in force
for 5 years.

46  Applications for renewal

             (1)  The ACMA may renew a commercial television broadcasting licence or a commercial radio broadcasting licence if:

                     (a)  the licensee makes an application for renewal of the licence, in accordance with a form approved in writing by the ACMA, at least 20 weeks but not more than one year before the licence is due to expire; and

                     (b)  the application is accompanied by the renewal fee determined in writing by the ACMA.

             (2)  If the ACMA receives an application for renewal, the ACMA must notify in the Gazette the fact that the application has been made.

47  ACMA to renew licences unless it is aware of special circumstances

             (1)  Subject to subsection (2), if the ACMA receives an application under section 46, the ACMA must, by notice in writing given to the licensee, renew the licence for a period of 5 years.

             (2)  The ACMA must refuse to renew a licence if the ACMA decides that subsection 41(2) applies to the licensee.

             (3)  The ACMA is not required to conduct an investigation or a hearing into whether a licence should be renewed.

48  Transfer of commercial broadcasting licences

                   A commercial television broadcasting licensee or a commercial radio broadcasting licensee may transfer the licence to another person.

49  Surrender of commercial broadcasting licences

                   A commercial television broadcasting licensee or a commercial radio broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence.


 

Part 5Control of commercial broadcasting licences and datacasting transmitter licences

Division 1Preliminary

50A  This Part does not apply in relation to licences allocated under subsection 40(1)

                   This Part does not apply in relation to:

                     (a)  a commercial television broadcasting licence; or

                     (b)  a commercial radio broadcasting licence;

if the licence was allocated under subsection 40(1).

50  Interpretation—knowledge of company

             (1)  For the purposes of this Part, if a director, the chief executive or a secretary of a company has knowledge of a matter, the company is taken to have knowledge of the matter.

             (2)  Subsection (1) does not limit the ways in which knowledge of a company can be established.

51  Means of dealing with overlapping licence areas

                   If:

                     (a)  more than 30% of the licence area population of a licence area is attributable to an overlap area; or

                     (b)  a licence area is entirely within another licence area;

the rules in this Part apply to the 2 licence areas, but not between those licence areas and other licence areas, as if the 2 licence areas were one.

51A  This Part does not apply to certain channel B datacasting transmitter licences

                   This Part does not apply to a channel B datacasting transmitter licence unless the relevant transmitter, or any of the relevant transmitters, is operated for transmitting a datacasting service that is capable of being received by a domestic digital television receiver.

52  Changes in licence area populations not to put persons in breach of this Part

                   If:

                     (a)  the ACMA makes a new determination of the licence area population of a licence area or of the population of Australia; and

                     (b)  as a result of the determination, a person would be in breach of subsection 53(1) or 55(1) or (2);

those subsections continue to apply to the person as if the previous determination remained in force.

52A  Newspapers—additional constitutional basis

             (1)  Without limiting its effect apart from this section, this Act also has effect as provided by this section.

             (2)  This Act also has the effect it would have if each reference in this Part to a newspaper were, by express provision, confined to a newspaper where:

                     (a)  the publisher of the newspaper is a constitutional corporation; or

                     (b)  at least part of the circulation of the newspaper is:

                              (i)  in 2 or more States; or

                             (ii)  in a Territory; or

                            (iii)  in a foreign country.


 

Division 2Limitation on control

Subdivision ACommercial broadcasting licences

53  Limitation on control of commercial television broadcasting licences

             (1)  A person must not be in a position to exercise control of commercial television broadcasting licences whose combined licence area populations exceed 75% of the population of Australia.

             (2)  A person must not be in a position to exercise control of more than one commercial television broadcasting licence in the same licence area.

54  Limitation on control of commercial radio broadcasting licences

                   A person must not be in a position to exercise control of more than 2 commercial radio broadcasting licences in the same licence area.

Subdivision BCommercial television broadcasting licences and datacasting transmitter licences

54A  Limitation on control of commercial television broadcasting licences and datacasting transmitter licences

                   A person must not be in a position to exercise control of:

                     (a)  a commercial television broadcasting licence; and

                     (b)  a datacasting transmitter licence.

Subdivision CCommercial radio broadcasting licences and restricted datacasting licences

54B  Limitation on control of commercial radio broadcasting licences and restricted datacasting licences during the digital radio moratorium period

             (1)  This section applies in relation to a commercial radio broadcasting licence if the licence was in force immediately before the digital radio start‑up day for the licence area.

             (2)  During the digital radio moratorium period for the licence area, a person must not be in a position to exercise control of:

                     (a)  the commercial radio broadcasting licence; and

                     (b)  a restricted datacasting licence.


 

Division 3Limitation on directorships

Subdivision ATelevision and radio

55  Limitation on numbers of directorships—television

             (1)  A person must not be a director of a company that is, or of 2 or more companies that are, between them, in a position to exercise control of commercial television broadcasting licences whose combined licence area populations exceed 75% of the population of Australia.

             (2)  A person must not be:

                     (a)  in a position to exercise control of a commercial television broadcasting licence; and

                     (b)  a director of a company that is in a position to exercise control of another commercial television broadcasting licence;

whose combined licence area populations exceed 75% of the population of Australia.

             (3)  A person must not be:

                     (a)  a director of a company that is in a position to exercise control of a commercial television broadcasting licence; and

                     (b)  a director of a company that is in a position to exercise control of another commercial television broadcasting licence;

if each of those licences have the same licence area.

             (4)  A person must not be:

                     (a)  a director of a company that is in a position to exercise control of a commercial television broadcasting licence; and

                     (b)  in a position to exercise control of another commercial television broadcasting licence;

if each of those licences have the same licence area.

56  Limitation on numbers of directorships—radio

                   A person must not be:

                     (a)  a director of a company that is, or of 2 or more companies that are, between them, in a position to exercise control of more than 2 commercial radio broadcasting licences in the same licence area; or

                     (b)  a director of a company that is, or of 2 or more companies that are, between them, in a position to exercise control of 2 commercial radio broadcasting licences in a licence area and in a position to exercise control of another commercial radio broadcasting licence in the same licence area; or

                     (c)  in a position to exercise control of 2 commercial radio broadcasting licences in a licence area and a director of a company that is in a position to exercise control of another commercial radio broadcasting licence in the same licence area.

Subdivision BTelevision and datacasting

56A  Limitation on directorships—television and datacasting

             (1)  A person must not be a director of:

                     (a)  a company that is in a position to exercise control of a commercial television broadcasting licence; and

                     (b)  a company that is in a position to exercise control of a datacasting transmitter licence.

             (2)  A person must not:

                     (a)  be in a position to exercise control of a commercial television broadcasting licence; and

                     (b)  be a director of a company that is in a position to exercise control of a datacasting transmitter licence.

             (3)  A person must not:

                     (a)  be a director of a company that is in a position to exercise control of a commercial television broadcasting licence; and

                     (b)  be in a position to exercise control of a datacasting transmitter licence.


 

Division 5Newspapers associated with licence areas

59  Newspapers associated with commercial television or radio broadcasting licence areas

             (1)  The ACMA is to maintain an Associated Newspaper Register.

             (2)  For the purposes of this Part, a newspaper is associated with the licence area of a licence if the name of the newspaper is entered in the Register as being associated with the licence area of the licence.

             (3)  If the ACMA is satisfied that at least 50% of the circulation of a newspaper is within the licence area of a commercial television broadcasting licence, the ACMA is to enter the name of the newspaper in the Register in relation to that licence area.

             (4)  If the ACMA is satisfied that less than 50% of the circulation of a newspaper that is entered in the Register in relation to a commercial television broadcasting licence is within the licence area of that licence, the ACMA is to remove the name of the newspaper from the Register in relation to that licence area.

          (4A)  If the ACMA is satisfied that:

                     (a)  at least 50% of the circulation of a newspaper is within the licence area of a commercial radio broadcasting licence; and

                     (b)  the circulation of the newspaper within that licence area is at least 2% of the licence area population;

the ACMA must enter the name of the newspaper in the Register in relation to the licence area.

          (4B)  If the ACMA is satisfied that:

                     (a)  less than 50% of the circulation of a newspaper that is entered in the Register in relation to a commercial radio broadcasting licence is within the licence area of that licence; or

                     (b)  the circulation of the newspaper within that licence area is less than 2% of the licence area population;

the ACMA must remove the name of the newspaper from the Register in relation to the licence area.

          (4C)  Despite subsections (3) and (4A), if the ACMA is satisfied that:

                     (a)  a person (either alone or together with one or more other persons) has entered into, begun to carry out or carried out a scheme to publish a newspaper; and

                     (b)  the person did so for the sole or dominant purpose of ensuring that the number of points in the licence area of a commercial radio broadcasting licence would be increased or maintained;

the ACMA may refuse to enter the name of the newspaper in the Register.

          (4D)  If:

                     (a)  a newspaper is entered in the Register; and

                     (b)  the ACMA is satisfied that:

                              (i)  a person (either alone or together with one or more other persons) entered into, began to carry out or carried out a scheme to publish the newspaper; and

                             (ii)  the person did so for the sole or dominant purpose of ensuring that the number of points in the licence area of a commercial radio broadcasting licence would be increased or maintained;

the ACMA may remove the name of the newspaper from the Register.

             (5)  The Register may be maintained by electronic means.

             (6)  The Register is to be made available for inspection on the internet.

             (7)  The ACMA may supply copies of or extracts from the Register certified by a member, and a copy or extract so certified is admissible in evidence in all courts and proceedings without further proof or production of the original.

             (8)  In this section:

points has the same meaning as in Division 5A.

scheme has the same meaning as in Division 5A.


 

Division 5AMedia diversity

Subdivision AIntroduction

61AA  Definitions

                   In this Division:

commencement day means the day on which Schedule 2 to the Broadcasting Services Amendment (Media Ownership) Act 2006 commences.

controller of a media group means a person who is in a position to exercise control of each media operation in the media group.

core/primary commercial television broadcasting service, in relation to a commercial television broadcasting licence, means:

                     (a)  if a core commercial television broadcasting service is provided under the licence—that service; or

                     (b)  if a primary commercial television broadcasting service is provided under the licence—that service.

daytime/evening hours means the hours:

                     (a)  beginning at 6 am each day; and

                     (b)  ending at midnight on the same day.

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

interest in a share means a legal or equitable interest in the share.

media group means a group of 2 or more media operations.

media operation means:

                     (a)  a commercial television broadcasting licence; or

                     (b)  a commercial radio broadcasting licence; or

                     (c)  a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence.

metropolitan licence area means:

                     (a)  a licence area in which is situated the General Post Office of the capital city of:

                              (i)  New South Wales; or

                             (ii)  Victoria; or

                            (iii)  Queensland; or

                            (iv)  Western Australia; or

                             (v)  South Australia; or

                     (b)  the licence area known as Western Suburbs Sydney RA1.

name of a commercial television broadcasting licence or a commercial radio broadcasting licence means the service licence number of the licence.

points, in relation to the licence area of a commercial radio broadcasting licence, has the meaning given by section 61AC.

primary commercial television broadcasting service has the same meaning as in Schedule 4.

regional licence area means a licence area that is not a metropolitan licence area.

Register means the Register of Controlled Media Groups maintained under section 61AU.

registered controller of a registered media group means a person whose name is entered in the Register as a controller of the media group.

registered media group means a media group that is entered in the Register.

registrable media group, in relation to the licence area of a commercial radio broadcasting licence, means a media group covered by item 1 of the table in subsection 61AC(1) in its application to that licence area. For this purpose, disregard subsection 61AC(2).

scheme means:

                     (a)  any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; and

                     (b)  any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.

shared content test has the meaning given by section 61AE.

statutory control rules has the meaning given by section 61AD.

unacceptable 3‑way control situation has the meaning given by section 61AEA.

unacceptable media diversity situation has the meaning given by section 61AB.

61AB  Unacceptable media diversity situation

Metropolitan licence area

             (1)  For the purposes of this Division, an unacceptable media diversity situation exists in relation to a metropolitan licence area of a commercial radio broadcasting licence if the number of points in the licence area is less than 5.

Regional licence area

             (2)  For the purposes of this Division, an unacceptable media diversity situation exists in relation to a regional licence area of a commercial radio broadcasting licence if the number of points in the licence area is less than 4.

61AC  Points

             (1)  Use the table to work out the number of points in the licence area of a commercial radio broadcasting licence (the first radio licence area):

 

Points

Item

This ...

is worth ...

1

a group of 2 or more media operations, where:

(a) a person is in a position to exercise control of each of those media operations; and

(b) each of those media operations complies with the statutory control rules; and

(c) if a commercial television broadcasting licence is in the group—more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and

(d) if a commercial radio broadcasting licence is in the group—the licence area of the commercial radio broadcasting licence is, or is the same as, the first radio licence area; and

(e) if a newspaper is in the group—the newspaper is associated with the first radio licence area

1 point.

2

a commercial radio broadcasting licence, where:

(a) the licence complies with the statutory control rules; and

(b) the licence area of the licence is, or is the same as, the first radio licence area; and

(c) item 1 does not apply to the licence

1 point.

3

a newspaper, where:

(a) the newspaper complies with the statutory control rules; and

(b) the newspaper is associated with the first radio licence area; and

(c) item 1 does not apply to the newspaper

1 point.

4

a group of 2 or more commercial television broadcasting licences, where:

(a) each of those licences complies with the statutory control rules; and

(b) more than 50% of the licence area population of the first radio licence area is attributable to the licence area of each of those commercial television broadcasting licences; and

(c) the core/primary commercial television broadcasting services to which those commercial television broadcasting licences relate pass the shared content test in relation to each other; and

(d) item 1 does not apply to any of those commercial television broadcasting licences

1 point.

5

a commercial television broadcasting licence, where:

(a) the licence complies with the statutory control rules; and

(b) more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and

(c) none of the commercial television broadcasting services provided under the licence passes the shared content test in relation to any of the commercial television broadcasting services provided under another commercial television broadcasting licence, where more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the other commercial television broadcasting licence; and

(d) item 1 does not apply to the first‑mentioned licence

1 point.

 

             (2)  If, apart from this subsection, all the media operations in a group of media operations mentioned in an item of the table are also in one or more other groups mentioned in an item of the table, then, for the purposes of subsection (1), ignore the existence of:

                     (a)  if one of the groups has the highest number of media operations—the remaining group or groups; or

                     (b)  if 2 or more of the groups have an equal highest number of media operations:

                              (i)  all but one of the groups that have an equal highest number of media operations; and

                             (ii)  the remaining group or groups; or

                     (c)  if the groups have an equal number of media operations—all but one of those groups.

61AD  Statutory control rules

                   For the purposes of this Division, a media operation complies with the statutory control rules if, and only if:

                     (a)  no person is in breach of a prohibition in Division 2 or 3 that relates directly or indirectly to the media operation; or

                     (b)  a person is in breach of a prohibition in Division 2 or 3 that relates directly or indirectly to the media operation, but the ACMA has approved the breach under section 67.

Note:          Section 67 is about approval of temporary breaches.

61AE  Shared content test

             (1)  For the purposes of this Division, a commercial television broadcasting service passes the shared content test at a particular time in relation to another commercial television broadcasting service if:

                     (a)  the program content of at least 50% of the total number of hours of programs broadcast by the first‑mentioned service during daytime/evening hours during the 6‑month period ending at that time;

were the same as:

                     (b)  the program content of at least 50% of the total number of hours of programs broadcast by the other service during daytime/evening hours during the 6‑month period ending at that time.

             (2)  For the purposes of subsection (1), ignore the following:

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

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

                     (c)  community information material or community promotional material;

                     (d)  a news break or weather bulletin;

                     (e)  any other similar material.

             (3)  For the purposes of subsection (1), ignore any material covered by paragraph 6(8)(b), (c) or (d) of Schedule 4.

61AEA  Unacceptable 3‑way control situation

                   For the purposes of this Division, an unacceptable 3‑way control situation exists in relation to the licence area of a commercial radio broadcasting licence (the first radio licence area) if a person is in a position to exercise control of:

                     (a)  a commercial television broadcasting licence, where more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and

                     (b)  a commercial radio broadcasting licence, where the licence area of the commercial radio broadcasting licence is, or is the same as, the first radio licence area; and

                     (c)  a newspaper that is associated with the first radio licence area.

61AF  Overlapping licence areas

                   Section 51 does not apply to this Division.

 Note:         Section 51 is about overlapping licence areas.

Subdivision BProhibition of transactions that result in an unacceptable media diversity situation coming into existence etc.

61AG  Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—offence

                   A person commits an offence if:

                     (a)  one or more transactions take place on or after the commencement day; and

                     (b)  the transactions have the result that:

                              (i)  an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or

                             (ii)  if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and

                     (c)  the person was:

                              (i)  a party to the transactions; or

                             (ii)  in a position to prevent the transactions taking place; and

                     (d)  the ACMA has not approved the transactions under section 61AJ.

Penalty:  20,000 penalty units.

61AH  Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—civil penalty

             (1)  This section applies if:

                     (a)  one or more transactions take place on or after the commencement day; and

                     (b)  the transactions have the result that:

                              (i)  an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or

                             (ii)  if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and

                     (c)  the ACMA has not approved the transactions under section 61AJ.

             (2)  A person must not be:

                     (a)  a party to the transactions; or

                     (b)  in a position to prevent the transactions taking place.

             (3)  Subsection (2) is a civil penalty provision.

61AJ  Prior approval of transactions that result in an unacceptable media diversity situation coming into existence etc.

             (1)  A person may, before a transaction takes place that would place a person in breach of section 61AG or 61AH, make an application to the ACMA for an approval of the transaction.

             (2)  An application is to be made in accordance with a form approved in writing by the ACMA.

             (3)  If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  If, after receiving an application, the ACMA is satisfied that:

                     (a)  if the transaction took place, it would place a person in breach of section 61AG or 61AH; and

                     (b)  either:

                              (i)  the applicant; or

                             (ii)  another person;

                            will take action, within a period of not longer than 2 years, to ensure that:

                            (iii)  an unacceptable media diversity situation does not exist in relation to the licence area concerned; or

                            (iv)  if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned;

the ACMA may, by written notice given to the applicant:

                     (c)  approve the transaction; and

                     (d)  if subparagraph (b)(i) applies—specify a period within which action must be taken by the applicant to ensure that:

                              (i)  an unacceptable media diversity situation does not exist in relation to the licence area concerned; or

                             (ii)  if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned; and

                     (e)  if subparagraph (b)(ii) applies—inform the applicant accordingly.

             (5)  The period specified in the notice must be at least one month, but not longer than 2 years.

             (6)  The ACMA may specify in a notice given to an applicant the action that the ACMA considers the applicant must take to ensure that:

                     (a)  an unacceptable media diversity situation does not exist in relation to the licence area concerned; or

                     (b)  if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned.

             (7)  In deciding whether to approve a transaction, the ACMA may have regard to:

                     (a)  any relevant undertakings that:

                              (i)  have been accepted by the ACMA under section 61AS; and

                             (ii)  have not been withdrawn or cancelled; and

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

             (8)  If the ACMA refuses to approve a transaction, the ACMA must give written notice of the refusal to the applicant.

             (9)  The ACMA must deal with applications under subsection (1) in order of receipt.

           (10)  If the ACMA receives an application under subsection (1), the ACMA must use its best endeavours to make a decision on the application within 45 days after receipt of the application.

61AK  Extension of time for compliance with prior approval notice

             (1)  A person who has been given a notice under section 61AJ may, within 3 months before the end of the period specified in the notice but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.

             (2)  The ACMA may grant an extension if it is of the opinion that an extension is appropriate in all the circumstances.

             (3)  If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  The ACMA must not grant more than one extension, and the period of any extension must not exceed:

                     (a)  the period originally specified in the notice; or

                     (b)  one year;

whichever is the lesser period.

             (5)  In deciding whether to grant an extension to an applicant, the ACMA is to have regard to:

                     (a)  the endeavours that the applicant made in attempting to comply with the notice; and

                     (b)  the difficulties that the applicant experienced in attempting to comply with the notice;

but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.

             (6)  If the ACMA does not, within 45 days after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:

                     (c)  the period originally specified in the notice; or

                     (d)  one year;

whichever is the lesser period.

             (7)  If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.

61AL  Breach of prior approval notice—offence

             (1)  A person commits an offence if:

                     (a)  the person has been given a notice under section 61AJ; and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes a requirement in the notice.

Penalty:  20,000 penalty units.

             (2)  A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

61AM  Breach of prior approval notice—civil penalty

             (1)  A person must comply with a notice under section 61AJ.

             (2)  Subsection (1) is a civil penalty provision.

             (3)  A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.

Subdivision BAProhibition of transactions that result in an unacceptable 3‑way control situation coming into existence etc.

61AMA  Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence—offence

                   A person commits an offence if:

                     (a)  one or more transactions take place on or after the commencement day; and

                     (b)  the transactions have the result that an unacceptable 3‑way control situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; and

                     (c)  the person was:

                              (i)  a party to the transactions; or

                             (ii)  in a position to prevent the transactions taking place; and

                     (d)  the ACMA has not approved the transactions under section 61AMC.

Penalty:  20,000 penalty units.

61AMB  Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence—civil penalty

             (1)  This section applies if:

                     (a)  one or more transactions take place on or after the commencement day; and

                     (b)  the transactions have the result that an unacceptable 3‑way control situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; and

                     (c)  the ACMA has not approved the transactions under section 61AMC.

             (2)  A person must not be:

                     (a)  a party to the transactions; or

                     (b)  in a position to prevent the transactions taking place.

             (3)  Subsection (2) is a civil penalty provision.

61AMC  Prior approval of transactions that result in an unacceptable 3‑way control situation coming into existence etc.

             (1)  A person may, before a transaction takes place that would place a person in breach of section 61AMA or 61AMB, make an application to the ACMA for an approval of the transaction.

             (2)  An application is to be made in accordance with a form approved in writing by the ACMA.

             (3)  If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  If, after receiving an application, the ACMA is satisfied that:

                     (a)  if the transaction took place, it would place a person in breach of section 61AMA or 61AMB; and

                     (b)  either:

                              (i)  the applicant; or

                             (ii)  another person;

                            will take action, within a period of not longer than 12 months, to ensure that an unacceptable 3‑way control situation does not exist in relation to the licence area concerned;

the ACMA may, by written notice given to the applicant:

                     (c)  approve the transaction; and

                     (d)  if subparagraph (b)(i) applies—specify a period within which action must be taken by the applicant to ensure that an unacceptable 3‑way control situation does not exist in relation to the licence area concerned; and

                     (e)  if subparagraph (b)(ii) applies—inform the applicant accordingly.

             (5)  The period specified in the notice must be at least one month, but not longer than 12 months.

             (6)  The ACMA may specify in a notice given to an applicant the action that the ACMA considers the applicant must take to ensure that an unacceptable 3‑way control situation does not exist in relation to the licence area concerned.

             (7)  In deciding whether to approve a transaction, the ACMA may have regard to:

                     (a)  any relevant undertakings that:

                              (i)  have been accepted by the ACMA under section 61AS; and

                             (ii)  have not been withdrawn or cancelled; and

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

             (8)  If the ACMA refuses to approve a transaction, the ACMA must give written notice of the refusal to the applicant.

             (9)  The ACMA must deal with applications under subsection (1) in order of receipt.

           (10)  If the ACMA receives an application under subsection (1), the ACMA must use its best endeavours to make a decision on the application within 45 days after receipt of the application.

61AMD  Extension of time for compliance with prior approval notice

             (1)  A person who has been given a notice under section 61AMC may, within 3 months before the end of the period specified in the notice but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.

             (2)  The ACMA may grant an extension if it is of the opinion that an extension is appropriate in all the circumstances.

             (3)  If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  The ACMA must not grant more than one extension, and the period of any extension must not exceed:

                     (a)  the period originally specified in the notice; or

                     (b)  6 months;

whichever is the lesser period.

             (5)  In deciding whether to grant an extension to an applicant, the ACMA is to have regard to:

                     (a)  the endeavours that the applicant made in attempting to comply with the notice; and

                     (b)  the difficulties that the applicant experienced in attempting to comply with the notice;

but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.

             (6)  If the ACMA does not, within 45 days after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:

                     (c)  the period originally specified in the notice; or

                     (d)  6 months;

whichever is the lesser period.

             (7)  If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.

61AME  Breach of prior approval notice—offence

             (1)  A person commits an offence if:

                     (a)  the person has been given a notice under section 61AMC; and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes a requirement in the notice.

Penalty:  20,000 penalty units.

             (2)  A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

61AMF  Breach of prior approval notice—civil penalty

             (1)  A person must comply with a notice under section 61AMC.

             (2)  Subsection (1) is a civil penalty provision.

             (3)  A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.

Subdivision CRemedial directions

61AN  Remedial directions—unacceptable media diversity situation

             (1)  If, on or after the commencement day, the ACMA is satisfied that an unacceptable media diversity situation exists in relation to the licence area of a commercial radio broadcasting licence, the ACMA may give a person such written directions as the ACMA considers appropriate for the purpose of ensuring that that situation ceases to exist.

             (2)  The ACMA’s directions may include:

                     (a)  a direction requiring the disposal of shares or interests in shares; or

                     (b)  a direction restraining the exercise of any rights attached to:

                              (i)  shares; or

                             (ii)  interests in shares; or

                     (c)  a direction prohibiting or deferring the payment of any sums due to a person in respect of shares, or interests in shares, held by the person; or

                     (d)  a direction that any exercise of rights attached to:

                              (i)  shares; or

                             (ii)  interests in shares;

                            be disregarded.

             (3)  Subsection (2) does not limit subsection (1).

             (4)  The ACMA must not give a direction under subsection (1) if the direction would have the effect of requiring a registered controller of a registered media group to cease to be in a position to exercise control of any of the media operations in the group.

          (4A)  Subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of a registered media group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of a media operation in the group if:

                     (a)  the registered controller failed to comply with a notice under section 61AJ; and

                     (b)  the notice related, to any extent, to the media operation.

          (4B)  Subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of a registered media group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of a media operation in the group if:

                     (a)  an approval under section 61AJ was given on the basis that the ACMA was satisfied that a person other than the registered controller would, within a particular period, take action that, to any extent, relates to the media operation; and

                     (b)  the person failed to take the action within that period.

          (4C)  If:

                     (a)  the ACMA made any of the following decisions (the original decision) in connection with a registrable media group in relation to the licence area of a commercial radio broadcasting licence:

                              (i)  a decision to enter the media group in the Register under subsection 61AY(1) or 61AZ(1);

                             (ii)  a decision under subsection 61AZE(1) confirming the entry of the media group in the Register;

                            (iii)  a decision under section 61AZF affirming a decision under subsection 61AZE(1) to confirm the entry of the media group in the Register;

                            (iv)  a decision under section 61AZF revoking a decision under subsection 61AZE(1) to cancel the entry of the media group in the Register; and

                     (b)  any of the following subparagraphs applies:

                              (i)  in the case of a decision under subsection 61AZE(1)—a person applied to the ACMA for a reconsideration of the original decision;

                             (ii)  in the case of a decision under section 61AZF—a person applied to the Administrative Appeals Tribunal for a review of the original decision;

                            (iii)  in any case—a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to the original decision; and

                     (c)  the original decision was set aside or revoked; and

                     (d)  after the original decision was set aside or revoked, the ACMA entered another registrable media group in relation to that licence area in the Register; and

                     (e)  after that other group was entered in the Register, the Administrative Appeals Tribunal or a court made a decision the effect of which was to restore or affirm the original decision;

subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of that other group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of any media operation in that other group.

             (5)  A direction under subsection (1) must specify a period within which the person must comply with the direction.

             (6)  The period must not be longer than 2 years.

          (6A)  If:

                     (a)  the ACMA gives a direction under subsection (1) in the circumstances referred to in subsection (4C); and

                     (b)  subsection (8) does not apply;

the period specified in the direction must be 2 years.

             (7)  If the ACMA is satisfied that the person:

                     (a)  acted in good faith; and

                     (b)  took reasonable precautions, and exercised due diligence, to avoid:

                              (i)  the unacceptable media diversity situation coming into existence; or

                             (ii)  if the unacceptable media diversity situation already existed—a reduction in the number of points in the licence area concerned;

the period specified in the direction must be 2 years.

             (8)  If the ACMA is satisfied that the person acted flagrantly in breach of section 61AG or 61AH, the period specified in the direction must be one month.

             (9)  The Parliament recognises that, if a period of one month is specified in a direction, the person to whom the direction is given or another person may be required to dispose of shares or interests in shares in a way, or otherwise make arrangements, that could cause the person a considerable financial disadvantage. Such a result is seen as necessary in order to discourage flagrant breaches of sections 61AG and 61AH.

61ANA  Remedial directions—unacceptable 3‑way control situation

             (1)  If, on or after the commencement day, the ACMA is satisfied that an unacceptable 3‑way control situation exists in relation to the licence area of a commercial radio broadcasting licence, the ACMA may give a person such written directions as the ACMA considers appropriate for the purpose of ensuring that that situation ceases to exist.

             (2)  The ACMA’s directions may include:

                     (a)  a direction requiring the disposal of shares or interests in shares; or

                     (b)  a direction restraining the exercise of any rights attached to:

                              (i)  shares; or

                             (ii)  interests in shares; or

                     (c)  a direction prohibiting or deferring the payment of any sums due to a person in respect of shares, or interests in shares, held by the person; or

                     (d)  a direction that any exercise of rights attached to:

                              (i)  shares; or

                             (ii)  interests in shares;

                            be disregarded.

             (3)  Subsection (2) does not limit subsection (1).

             (4)  A direction under subsection (1) must specify a period within which the person must comply with the direction.

             (5)  The period must not be longer than 12 months.

             (6)  If the ACMA is satisfied that the person:

                     (a)  acted in good faith; and

                     (b)  took reasonable precautions, and exercised due diligence, to avoid the unacceptable 3‑way control situation coming into existence;

the period specified in the direction must be 12 months.

             (7)  If the ACMA is satisfied that the person acted flagrantly in breach of section 61AMA or 61AMB, the period specified in the direction must be one month.

             (8)  The Parliament recognises that, if a period of one month is specified in a direction, the person to whom the direction is given or another person may be required to dispose of shares or interests in shares in a way, or otherwise make arrangements, that could cause the person a considerable financial disadvantage. Such a result is seen as necessary in order to discourage flagrant breaches of sections 61AMA and 61AMB.

61AP  Extension of time for compliance with remedial direction

             (1)  A person who has been given a direction under section 61AN or 61ANA may, within 3 months before the end of the period specified in the direction but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.

             (2)  An application for an extension cannot be made if the period specified in the direction was one month.

             (3)  In the case of a direction under section 61AN, the ACMA may grant an extension if it is of the opinion that:

                     (a)  an unacceptable media diversity situation is likely to cease to exist in the licence area concerned within 3 months after the end of the period specified in the direction under section 61AN; and

                     (b)  the applicant acted in good faith; and

                     (c)  an extension is appropriate in all the circumstances.

          (3A)  In the case of a direction under section 61ANA, the ACMA may grant an extension if it is of the opinion that:

                     (a)  an unacceptable 3‑way control situation is likely to cease to exist in the licence area concerned within 3 months after the end of the period specified in the direction under section 61ANA; and

                     (b)  the applicant acted in good faith; and

                     (c)  an extension is appropriate in all the circumstances.

             (4)  If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (5)  The ACMA must not grant more than one extension, and the period of any extension must not exceed 3 months.

             (6)  In deciding whether to grant an extension to a person, the ACMA is to have regard to:

                     (a)  the endeavours that the applicant made in attempting to comply with the direction; and

                     (b)  the difficulties experienced by the applicant in attempting to comply with the direction; and

                     (c)  the seriousness of the situation that led to the giving of the direction under section 61AN or 61ANA, as the case may be;

but the ACMA must not have regard to any financial disadvantage that compliance with the direction may cause.

             (7)  If the ACMA does not, within 45 days after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

extend the period or refuse to extend the period originally specified in the direction, the ACMA is to be taken to have extended that period by 3 months.

             (8)  If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.

61AQ  Breach of remedial direction—offence

             (1)  A person commits an offence if:

                     (a)  the person has been given a direction under section 61AN or 61ANA; and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes a requirement in the direction.

Penalty:  20,000 penalty units.

             (2)  A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

61AR  Breach of remedial direction—civil penalty

             (1)  A person must comply with a direction under section 61AN or 61ANA.

             (2)  Subsection (1) is a civil penalty provision.

             (3)  A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.

Subdivision DEnforceable undertakings

61AS  Acceptance of undertakings

             (1)  The ACMA may accept any of the following undertakings:

                     (a)  a written undertaking given by a person that the person will take specified action to ensure that an unacceptable media diversity situation does not exist in relation to the licence area of a commercial radio broadcasting licence;

                     (b)  if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—a written undertaking given by a person that the person will take specified action to ensure that there is not a reduction in the number of points in the licence area;

                     (c)  a written undertaking given by a person that the person will take specified action to ensure that an unacceptable 3‑way control situation does not exist in relation to the licence area of a commercial radio broadcasting licence.

             (2)  The undertaking must be expressed to be an undertaking under this section.

             (3)  The person may withdraw or vary the undertaking at any time, but only with the consent of the ACMA.

             (4)  The ACMA may, by written notice given to the person, cancel the undertaking.

             (5)  The ACMA may publish the undertaking on its website.

61AT  Enforcement of undertakings

             (1)  If:

                     (a)  a person has given an undertaking under section 61AS; and

                     (b)  the undertaking has not been withdrawn or cancelled; and

                     (c)  the ACMA considers that the person has breached the undertaking;

the ACMA may apply to the Federal Court for an order under subsection (2).

             (2)  If the Federal Court is satisfied that the person has breached the undertaking, the court may make any or all of the following orders:

                     (a)  an order directing the person to comply with the undertaking;

                     (b)  an order directing the person to pay to the ACMA, on behalf of the Commonwealth, an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

                     (c)  any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

                     (d)  any other order that the court considers appropriate.

Subdivision ERegister of Controlled Media Groups

61AU  Register of Controlled Media Groups

             (1)  The ACMA is to maintain a register, to be known as the Register of Controlled Media Groups.

             (2)  The Register is to be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the internet.

             (4)  The Register is not a legislative instrument.

             (5)  The ACMA must begin to comply with subsection (1) as soon as practicable after the start of 1 February 2007.

61AV  How a media group is to be entered in the Register

             (1)  For the purposes of this Subdivision, the ACMA is to enter a media group in the Register by entering in the Register, under a heading for the group:

                     (a)  the names of the media operations in the group; and

                     (b)  the name of the controller, or the names of each of the controllers, of the media operations in the group.

             (2)  A media group is to be identified in the Register by a unique number assigned by the ACMA.

61AW  Explanatory notes may be included in the Register

             (1)  The ACMA may include explanatory notes in the Register.

             (2)  Explanatory notes do not form part of a media group’s entry in the Register.

61AX  Continuity of media group

             (1)  For the purposes of this Subdivision, a change in the controller, or any of the controllers, of a media group does not affect the continuity of the group.

             (2)  For the purposes of this Subdivision, a change in the composition of the media operations in a media group results in the group ceasing to exist.

             (3)  However, the rule in subsection (2) does not apply to a change in the composition of the media operations in a media group if:

                     (a)  one or more media operations cease to be in the group; and

                     (b)  at least 2 media operations remain in the group; and

                     (c)  there is no increase in the number of media operations that remain in the group.

61AY  Initial registration of media groups

             (1)  If the ACMA is satisfied that a particular media group was a registrable media group in relation to the licence area of a commercial radio broadcasting licence at the start of 1 February 2007, the ACMA must enter the group in the Register.

             (2)  For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

             (3)  If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant entry within 2 business days after receiving the notification or the last of the notifications.

             (4)  If the ACMA makes an entry under subsection (1), the ACMA is to include in the Register a note to the effect that the entry is unconfirmed.

             (5)  An entry under subsection (1) is taken to have been made at the start of 1 February 2007.

61AZ  Registration of newly‑formed media group

             (1)  If:

                     (a)  the ACMA is satisfied that:

                              (i)  a registrable media group has come into existence on or after 1 February 2007; and

                             (ii)  the media group is not already entered in the Register; and

                     (b)  the ACMA is satisfied that the coming into existence of the media group does not have the result that:

                              (i)  an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or

                             (ii)  if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and

                     (c)  the ACMA is satisfied that the coming into existence of the media group does not have the result that an unacceptable 3‑way control situation comes into existence in relation to the licence area of a commercial radio broadcasting licence;

the ACMA must enter the group in the Register.

             (2)  For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

             (3)  If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant entry within 2 business days after receiving the notification or the last of the notifications.

             (4)  If the ACMA makes an entry under subsection (1), the ACMA is to include in the Register a note to the effect that the entry is unconfirmed.

Register frozen while ACMA reconsideration is pending or AAT/court proceedings are pending

             (5)  If:

                     (a)  the ACMA makes a decision under this Subdivision in connection with a registrable media group in relation to the licence area of a commercial radio broadcasting licence; and

                     (b)  any of the following subparagraphs applies:

                              (i)  in the case of a decision under subsection 61AZE(1)—a person applies to the ACMA for a reconsideration of the decision;

                             (ii)  in the case of a decision under section 61AZF—a person applies to the Administrative Appeals Tribunal for a review of the decision;

                            (iii)  in any case—a person applies to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to the decision;

then:

                     (c)  despite subsection (1), the ACMA must not enter any other registrable media group in relation to that licence area in the Register under that subsection during the period (the pending period) when that application has not been finalised unless the ACMA is satisfied that, assuming that the decision were not to be set aside or revoked, the coming into existence of the media group does not have the result that:

                              (i)  an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or

                             (ii)  if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and

                     (d)  if the ACMA is satisfied that another registrable media group in relation to that licence area has come into existence during the pending period—subsection (3) has effect, in relation to the other registrable media group, as if the relevant notification, or the last of the relevant notifications, as the case may be, had been received on the first day after the end of the pending period.

             (6)  For the purposes of subsection (5), an application for reconsideration of a decision is taken not to have been finalised during the period of 28 days beginning on:

                     (a)  if, because of the operation of subsection 61AZF(9), the decision is taken to be affirmed—the day on which the decision is taken to have been affirmed; or

                     (b)  in any other case—the day on which the decision on the reconsideration is notified to the person concerned.

             (7)  For the purposes of subsection (5), if:

                     (a)  a person applied to the Administrative Appeals Tribunal for a review of a decision; and

                     (b)  the Administrative Appeals Tribunal makes a decision on the application;

the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (b) is made.

             (8)  For the purposes of subsection (5), if:

                     (a)  a person applied to the Administrative Appeals Tribunal for a review of a decision; and

                     (b)  the Administrative Appeals Tribunal made a decision on the application; and

                     (c)  a person appeals from the decision to the Federal Court; and

                     (d)  the Court makes a decision on the appeal;

the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (d) is made.

             (9)  For the purposes of subsection (5), if:

                     (a)  a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to a decision; and

                     (b)  the court makes a decision on the application;

the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (b) is made.

           (10)  For the purposes of subsection (5), if:

                     (a)  a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to a decision; and

                     (b)  the court made a decision on the application; and

                     (c)  the decision became the subject of an appeal; and

                     (d)  the court or another court makes a decision on the appeal; and

                     (e)  the decision mentioned in paragraph (d) could be the subject of an appeal;

the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (d) is made.

           (11)  The regulations may provide that, in specified circumstances, an application is taken, for the purposes of subsection (5), not to have been finalised during a period ascertained in accordance with the regulations.

           (12)  The regulations may extend the 28‑day period referred to in subsection (6), (7), (8), (9) or (10).

61AZA  De‑registration of media group that has ceased to exist

             (1)  If the ACMA is satisfied that a registered media group has ceased to exist on or after 1 February 2007, the ACMA must remove the group’s entry from the Register.

             (2)  For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

             (3)  If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must remove the relevant entry within 2 business days after receiving the notification or the last of the notifications.

             (4)  If, under subsection (1), the ACMA removes a group’s entry from the Register, the ACMA must include in the Register a note to the effect that the removal is unconfirmed.

61AZB  Registration of change of controller of registered media group

             (1)  If the ACMA is satisfied that:

                     (a)  a person who is not a registered controller of a registered media group has become a controller of the group on or after 1 February 2007; or

                     (b)  a registered controller of a registered media group has ceased to be a controller of the group on or after 1 February 2007;

the ACMA must:

                     (c)  if paragraph (a) applies—alter the group’s entry in the Register by adding the name of the controller concerned; or

                     (d)  if paragraph (b) applies—alter the group’s entry in the Register by omitting the name of the controller concerned.

             (2)  For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

             (3)  If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant alteration within 2 business days after receiving the notification or the last of the notifications.

             (4)  If the ACMA makes an alteration under subsection (1), the ACMA must include in the Register a note to the effect that the alteration is unconfirmed.

61AZC  Registration of change of composition of media group

             (1)  If the ACMA is satisfied that:

                     (a)  one or more of the media operations in a registered media group have ceased to be in that group on or after 1 February 2007; and

                     (b)  the group continues in existence;

the ACMA must alter the group’s entry in the Register by omitting the name or names of the media operations referred to in paragraph (a).

             (2)  For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

             (3)  If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant alteration within 2 business days after receiving the notification or the last of the notifications.

             (4)  If the ACMA makes an alteration under subsection (1), the ACMA is to include in the Register a note to the effect that the alteration is unconfirmed.

61AZCA  ACMA must deal with notifications in order of receipt

             (1)  For the purposes of sections 61AY, 61AZ, 61AZA, 61AZB and 61AZC, the ACMA must deal with notifications given, or purportedly given, under Division 6 in order of receipt.

             (2)  Subsection (1) has effect subject to subsection 61AZ(5).

61AZD  Conditional transactions

Entry of media group

             (1)  If:

                     (a)  a person is a party to a proposed transaction; and

                     (b)  the proposed transaction is subject to the condition that the ACMA enters a proposed media group in the Register; and

                     (c)  the person requests the ACMA to assume, for the purposes of this Subdivision, that the proposed transaction:

                              (i)  had been completed; and

                             (ii)  were not subject to that condition; and

                     (d)  the ACMA is satisfied that:

                              (i)  the parties to the proposed transaction are acting in good faith; and

                             (ii)  if the media group were to be entered in the Register on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the making of the relevant entry in the Register;

then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).

Removal of entry of media group

             (2)  If:

                     (a)  a person is a party to a proposed transaction; and

                     (b)  the proposed transaction is subject to the condition that the ACMA removes a media group’s entry from the Register; and

                     (c)  the person requests the ACMA to assume, for the purposes of this Subdivision, that the proposed transaction:

                              (i)  had been completed; and

                             (ii)  were not subject to that condition; and

                     (d)  the ACMA is satisfied that:

                              (i)  the parties to the proposed transaction are acting in good faith; and

                             (ii)  if the media group’s entry were to be removed from the Register on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the removal of the relevant entry from the Register;

then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).

Alteration of entry of media group

             (3)  If:

                     (a)  a person is a party to a proposed transaction; and

                     (b)  the proposed transaction is subject to the condition that the ACMA alters a media group’s entry in the Register; and

                     (c)  the person requests the ACMA to assume, for the purposes of this Subdivision, that the proposed transaction:

                              (i)  had been completed; and

                             (ii)  were not subject to that condition; and

                     (d)  the ACMA is satisfied that:

                              (i)  the parties to the proposed transaction are acting in good faith; and

                             (ii)  if the media group’s entry in the Register were to be altered on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the making of the relevant alteration in the Register;

then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).

Requests

             (4)  A request under subsection (1), (2) or (3) must be:

                     (a)  in a form approved in writing by the ACMA; and

                     (b)  accompanied by such information as the ACMA requires.

             (5)  An approved form of a request may provide for verification by statutory declaration of information accompanying requests.

61AZE  Review and confirmation of entries and alterations etc.

Review

             (1)  If the ACMA:

                     (a)  enters a media group in the Register under subsection 61AY(1) or 61AZ(1); or

                     (b)  removes a media group’s entry from the Register under subsection 61AZA(1); or

                     (c)  makes an alteration to a media group’s entry in the Register under subsection 61AZB(1) or 61AZC(1);

the ACMA must review the entry, removal or alteration, and make a decision:

                     (d)  confirming the relevant entry, removal or alteration; or

                     (e)  cancelling the relevant entry, removal or alteration.

Confirmation

             (2)  If the ACMA confirms the relevant entry, removal or alteration, the ACMA must remove from the Register the note stating that the entry, removal or alteration is unconfirmed.

Cancellation

             (3)  If the ACMA cancels an entry, the ACMA must:

                     (a)  remove the entry from the Register; and

                     (b)  remove from the Register the note stating that the entry is unconfirmed.

             (4)  If the ACMA cancels the removal of an entry, the ACMA must:

                     (a)  restore the entry to the Register; and

                     (b)  remove from the Register the note stating that the removal is unconfirmed.

             (5)  If the ACMA cancels an alteration, the ACMA must:

                     (a)  reverse the alteration; and

                     (b)  remove from the Register the note stating that the alteration is unconfirmed.

ACMA not required to rely on notifications

             (6)  To avoid doubt, in exercising its powers under subsection (1), the ACMA is not required to rely on a notification given, or purportedly given, under Division 6.

Conditional transactions

             (7)  If:

                     (a)  under subsection (1), the ACMA reviews an entry or alteration; and

                     (b)  the entry or alteration was made on the assumption that a proposed transaction had been completed (see section 61AZD); and

                     (c)  the ACMA is not satisfied that the proposed transaction was completed within 5 business days after the making of the entry or alteration;

the ACMA must make a decision under subsection (1) cancelling the entry or alteration.

             (8)  If:

                     (a)  under subsection (1), the ACMA reviews a removal of an entry; and

                     (b)  the removal was done on the assumption that a proposed transaction had been completed (see section 61AZD); and

                     (c)  the ACMA is not satisfied that the proposed transaction was completed within 5 business days after the removal;

the ACMA must make a decision under subsection (1) to cancel the removal.

ACMA may request additional information

             (9)  If:

                     (a)  under subsection (1), the ACMA reviews an entry, removal or alteration; and

                     (b)  the ACMA considers that additional information is required before the ACMA can make a decision under subsection (1);

the ACMA may, within 14 days after the relevant entry, removal or alteration, by written notice given to a person, request the person to provide that information.

Deadline

           (10)  If the ACMA does not, within 28 days after:

                     (a)  doing whichever of the following is applicable:

                              (i)  entering a media group in the Register under subsection 61AY(1) or 61AZ(1);

                             (ii)  removing a media group’s entry from the Register under subsection 61AZA(1);

                            (iii)  making an alteration to a media group’s entry in the Register under subsection 61AZB(1) or 61AZC(1); or

                     (b)  if the ACMA has requested further information—receiving that further information;

make a decision under subsection (1):

                     (c)  confirming the relevant entry, removal or alteration; or

                     (d)  cancelling the relevant entry, removal or alteration;

the ACMA is taken to have made a decision under subsection (1) at the end of that 28‑day period confirming the relevant entry, removal or alteration.

61AZF  Reconsideration of decisions

Applications for reconsideration of decisions

             (1)  A person:

                     (a)  whose interests are affected by a decision under subsection 61AZE(1); and

                     (b)  who is dissatisfied with the decision;

may apply to the ACMA for the ACMA to reconsider the decision.

             (2)  The application must:

                     (a)  be in a form approved in writing by the ACMA; and

                     (b)  set out the reasons for the application.

             (3)  The application must be made within 7 days after the taking of the action required by subsection 61AZE(2), (3), (4) or (5) to give effect to the decision.

             (4)  An approved form of an application may provide for verification by statutory declaration of statements in applications.

Reconsideration of decisions—application

             (5)  Upon receiving an application under subsection (1), the ACMA must:

                     (a)  reconsider the decision; and

                     (b)  affirm or revoke the decision.

             (6)  The ACMA’s decision on reconsideration of a decision has effect as if it had been made under subsection 61AZE(1).

             (7)  The ACMA must give to the applicant a notice stating its decision on the reconsideration.

ACMA may request additional information

             (8)  If:

                     (a)  an application is made under subsection (1); and

                     (b)  the ACMA considers that additional information is required before the ACMA can make a decision under subsection (5);

the ACMA may, within 14 days after receiving the application, by written notice given to:

                     (c)  the applicant; or

                     (d)  any other person;

request the applicant or other person to provide that information.

             (9)  If the ACMA does not, within 28 days after:

                     (a)  receiving an application under subsection (1); or

                     (b)  if the ACMA has requested further information—receiving that further information;

make a decision under subsection (5), the ACMA is taken to have made a decision under subsection (5) at the end of that 28‑day period affirming the original decision.

Reconsideration of decisions—ACMA’s own initiative

           (10)  The ACMA may, at any time:

                     (a)  reconsider a decision made under subsection 61AZE(1); and

                     (b)  affirm or revoke the decision.

           (11)  The ACMA’s decision on reconsideration of a decision has effect as if it had been made under subsection 61AZE(1).

61AZG  Corrections of clerical errors or obvious defects

                   The ACMA may alter the Register for the purposes of correcting a clerical error or an obvious defect in the Register.

61AZH  Regulations

                   The regulations may make further provision about the operation of the Register.


 

Division 5BDisclosure of cross‑media relationships

61BA  Definitions

                   In this Division:

media operation means:

                     (a)  a commercial television broadcasting licence; or

                     (b)  a commercial radio broadcasting licence; or

                     (c)  a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence.

prime‑time hours means the hours:

                     (a)  beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and

                     (b)  ending at 10 am on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

set of media operations means:

                     (a)  a commercial television broadcasting licence and a commercial radio broadcasting licence that have the same licence area; or

                     (b)  a commercial television broadcasting licence and a newspaper that is associated with the licence area of the licence; or

                     (c)  a commercial radio broadcasting licence and a newspaper that is associated with the licence area of the licence.

61BB  Disclosure of cross‑media relationship by commercial television broadcasting licensee

Scope

             (1)  This section applies if:

                     (a)  a person is in a position to exercise control of each media operation in a set of media operations; and

                     (b)  a commercial television broadcasting licence is in the set; and

                     (c)  the licensee broadcasts matter that is wholly or partly about:

                              (i)  the business affairs of a commercial radio broadcasting licensee whose licence is in the set; or

                             (ii)  the business affairs of the publisher of a newspaper that is in the set.

Note:          For business affairs, see section 61BH.

Requirement to disclose cross‑media relationship

             (2)  If subparagraph (1)(c)(i) applies, the commercial television broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial television broadcasting licensee and the commercial radio broadcasting licensee.

             (3)  It is sufficient if the statement under subsection (2) is to the effect that there is a cross‑media relationship between the commercial television broadcasting licensee and the commercial radio broadcasting licensee.

             (4)  If subparagraph (1)(c)(ii) applies, the commercial television broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial television broadcasting licensee and the publisher of the newspaper.

             (5)  It is sufficient if the statement under subsection (4) is to the effect that there is a cross‑media relationship between the commercial television broadcasting licensee and the publisher of the newspaper.

How statement is to be broadcast

             (6)  A statement under subsection (2) or (4) must be broadcast in a way that will adequately bring it to the attention of a reasonable person who may have viewed the broadcast mentioned in paragraph (1)(c).

             (7)  The regulations may provide that subsection (6) is taken to have been complied with if the statement is broadcast in the manner, and at the time, specified in, or ascertained in accordance with, the regulations.

61BC  Choice of disclosure method—commercial radio broadcasting licensee

Notice of choice may be given to the ACMA

             (1)  A commercial radio broadcasting licensee may give the ACMA a written notice making a choice that section 61BE apply to the licensee with effect from a Sunday specified in the notice.

Note:          If a notice is not given, section 61BD applies to the licensee.

When notice must be given

             (2)  A notice under subsection (1) must be given at least 5 business days before the Sunday specified in the notice.

Duration of notice

             (3)  A notice under subsection (1):

                     (a)  comes into force at the beginning of the Sunday specified in the notice; and

                     (b)  unless sooner revoked, remains in force indefinitely.

Revocation of notice

             (4)  If a notice under subsection (1) is in force in relation to a commercial radio broadcasting licensee, the licensee may, by written notice given to the ACMA, revoke the subsection (1) notice with effect from the end of a Saturday specified in the revocation notice.

             (5)  A notice under subsection (4) must be given at least 5 business days before the Saturday specified in the notice.

Notices to be available on the internet

             (6)  If a notice is in force under subsection (1), the ACMA must make a copy of the notice available on the internet.

61BD  Disclosure of cross‑media relationship by commercial radio broadcasting licensee—business affairs disclosure method

Scope

             (1)  This section applies if:

                     (a)  a person is in a position to exercise control of each media operation in a set of media operations; and

                     (b)  a commercial radio broadcasting licence is in the set; and

                     (c)  the licensee broadcasts matter that is wholly or partly about:

                              (i)  the business affairs of a commercial television broadcasting licensee whose licence is in the set; or

                             (ii)  the business affairs of the publisher of a newspaper that is in the set; and

                     (d)  a notice under subsection 61BC(1) is not in force in relation to the commercial radio broadcasting licensee.

Note:          For business affairs, see section 61BH.

Requirement to disclose cross‑media relationship

             (2)  If subparagraph (1)(c)(i) applies, the commercial radio broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.

             (3)  It is sufficient if the statement under subsection (2) is to the effect that there is a cross‑media relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.

             (4)  If subparagraph (1)(c)(ii) applies, the commercial radio broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

             (5)  It is sufficient if the statement under subsection (4) is to the effect that there is a cross‑media relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

How statement is to be broadcast

             (6)  A statement under subsection (2) or (4) must be broadcast in a way that will adequately bring it to the attention of a reasonable person who may have listened to the broadcast mentioned in paragraph (1)(c).

             (7)  The regulations may provide that subsection (6) is taken to have been complied with if the statement is broadcast in the manner, and at the time, specified in, or ascertained in accordance with, the regulations.

61BE  Disclosure of cross‑media relationship by commercial radio broadcasting licensee—regular disclosure method

Scope

             (1)  This section applies if:

                     (a)  a person is in a position to exercise control of each media operation in a set of media operations; and

                     (b)  a commercial radio broadcasting licence is in the set; and

                     (c)  a notice under subsection 61BC(1) is in force in relation to the commercial radio broadcasting licensee.

Requirement to disclose cross‑media relationship

             (2)  If a commercial television broadcasting licence is in the set, the commercial radio broadcasting licensee must regularly broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.

             (3)  It is sufficient if the statement under subsection (2) is to the effect that there is a cross‑media relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.

             (4)  If a newspaper is in the set, the commercial radio broadcasting licensee must regularly broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

             (5)  It is sufficient if the statement under subsection (4) is to the effect that there is a cross‑media relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

How statement is to be broadcast

             (6)  Statements under subsection (2) or (4) are to be broadcast in a way, and with a frequency, that is reasonably likely to ensure that the audience of the commercial radio broadcasting service during prime‑time hours is aware that:

                     (a)  in the case of statements under subsection (2)—there is a relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee; or

                     (b)  in the case of statements under subsection (4)—there is a relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

             (7)  A commercial radio broadcasting licensee is taken to have complied with subsection (6) if:

                     (a)  the statement is broadcast at least once each day during prime‑time hours; and

                     (b)  the statement is broadcast in a way that will adequately bring it to the attention of a reasonable person who may have listened to the broadcast of the statement.

             (8)  The regulations may provide that a commercial radio broadcasting licensee is taken to have complied with subsection (6) if the statement is broadcast in the manner, and at the times, ascertained in accordance with the regulations.

61BF  Disclosure of cross‑media relationship by publisher of newspaper

Scope

             (1)  This section applies if:

                     (a)  a person is in a position to exercise control of each media operation in a set of media operations; and

                     (b)  a newspaper is in the set; and

                     (c)  material published in a particular edition of the newspaper is wholly or partly about:

                              (i)  the business affairs of a commercial television broadcasting licensee whose licence is in the set; or

                             (ii)  the business affairs of a commercial radio broadcasting licensee whose licence is in the set.

Note:          For business affairs, see section 61BH.

Requirement to disclose cross‑media relationship

             (2)  If subparagraph (1)(c)(i) applies, the publisher of the newspaper must cause to be published in the same edition of the newspaper a statement describing (whether in summary form or otherwise) the relationship between the publisher and the commercial television broadcasting licensee.

             (3)  It is sufficient if the statement under subsection (2) is to the effect that there is a cross‑media relationship between the publisher and the commercial television broadcasting licensee.

             (4)  If subparagraph (1)(c)(ii) applies, the publisher of the newspaper must cause to be published in the same edition of the newspaper a statement describing (whether in summary form or otherwise) the relationship between the publisher and the commercial radio broadcasting licensee.

             (5)  It is sufficient if the statement under subsection (4) is to the effect that there is a cross‑media relationship between the publisher and the commercial radio broadcasting licensee.

How statement is to be published

             (6)  A statement under subsection (2) or (4) must be published in a way that will adequately bring it to the attention of a reasonable person who may have read the material mentioned in paragraph (1)(c).

             (7)  The regulations may provide that subsection (6) is taken to have been complied with if the statement is published in the manner specified in, or ascertained in accordance with, the regulations.

Offence

             (8)  A person is guilty of an offence if:

                     (a)  the person is subject to a requirement under this section; and

                     (b)  the person omits to do an act; and

                     (c)  the omission breaches the requirement.

Penalty for contravention of this subsection: 2,000 penalty units.

61BG  Exception—political communication

                   Sections 61BB, 61BD, 61BE and 61BF do not apply to the extent (if any) that they would infringe any constitutional doctrine of implied freedom of political communication.

61BH  Matter or material about the business affairs of a broadcasting licensee or newspaper publisher

Matter or material about business affairs—what is included and excluded

             (1)  A reference in this Division to matter or material that is wholly or partly about the business affairs of a commercial television broadcasting licensee, a commercial radio broadcasting licensee or a newspaper publisher:

                     (a)  includes a reference to matter or material, where, having regard to:

                              (i)  the nature of the matter or material; and

                             (ii)  the way in which the matter or material is presented;

                            it would be reasonable to conclude that the object, or one of the objects, of the broadcast of the matter or the publication of the material, as the case may be, was to:

                            (iii)  promote; or

                            (iv)  otherwise influence members of the public, or of a section of the public, to view, to listen to, or to read;

                            matter broadcast, or to be broadcast, by the licensee, or material published, or to be published, in the newspaper, as the case may be; and

                     (b)  does not include a reference to:

                              (i)  a journalistic acknowledgment of a program or article as being the source of particular information; or

                             (ii)  advertising matter or advertising material, where a reasonable person would be able to distinguish the advertising matter or advertising material from other matter or material; or

                            (iii)  a program guide (see subsection (2)); or

                            (iv)  exempt matter or exempt material (see subsection (4)).

Program guide

             (2)  For the purposes of this section, a program guide is matter or material that consists of no more than:

                     (a)  a schedule of:

                              (i)  the television programs provided by 2 or more television broadcasting services; or

                             (ii)  the radio programs provided by 2 or more radio broadcasting services; or

                     (b)  a combination of:

                              (i)  a schedule covered by paragraph (a); and

                             (ii)  items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief;

where the matter or material does not single out one of those services for special promotion.

             (3)  For the purposes of subsection (2):

                     (a)  a television broadcasting service is:

                              (i)  a commercial broadcasting service that provides television programs; or

                             (ii)  a national broadcasting service that provides television programs; and

                     (b)  a radio broadcasting service is:

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

                             (ii)  a national broadcasting service that provides radio programs.

Exempt matter or exempt material

             (4)  The Minister may, by legislative instrument, determine that:

                     (a)  matter included in a specified class of matter is exempt matter for the purposes of this section; and

                     (b)  material included in a specified class of material is exempt material for the purposes of this section.

             (5)  A determination under subsection (4) has effect accordingly.

Advertising

             (6)  This section does not, by implication, affect the meaning of the expression advertising when used in any other provision of this Act.


 

Division 5CLocal news and information requirements for regional commercial radio broadcasting licensees

Subdivision AIntroduction

61CA  Definitions

                   In this Division:

approved local content plan means an approved local content plan under Subdivision C.

benchmark year means:

                     (a)  in relation to a regional commercial radio broadcasting licence where a single trigger event has occurred—the 52‑week period ending on the Saturday before the day on which the trigger event occurred; and

                     (b)  in relation to a regional commercial radio broadcasting licence where 2 or more trigger events have occurred—the 52‑week period ending on the Saturday before the day on which the most recent trigger event occurred.

community service announcement means community information, or community promotional material, for the broadcast of which the licensee does not receive any consideration in cash or in kind.

controller has the same meaning as in Division 5A.

designated local content program means a program about matters of local significance, other than:

                     (a)  a news bulletin; or

                    (aa)  a weather bulletin; or

                     (b)  a community service announcement; or

                     (c)  an emergency warning.

draft local content plan means a draft local content plan under Subdivision C.

eligible local news bulletins means local news bulletins that meet the following requirements:

                     (a)  the bulletins are broadcast on at least 5 days during the week;

                     (b)  the bulletins broadcast on each of those days have a total duration of at least 12.5 minutes;

                     (c)  the bulletins are broadcast during prime‑time hours;

                     (d)  the bulletins adequately reflect matters of local significance;

                     (e)  none of the bulletins consists wholly of material that has previously been broadcast in the licence area concerned.

eligible local weather bulletins means local weather bulletins that meet the following requirements:

                     (a)  the bulletins are broadcast on at least 5 days during the week;

                     (b)  the bulletins are broadcast during prime‑time hours.

emergency service agency means:

                     (a)  a police force or service; or

                     (b)  a fire service; or

                     (c)  a body that runs an emergency service specified in the regulations.

local (except in sections 61CR and 61CS) has a meaning affected by section 61CC.

metropolitan licence area means:

                     (a)  a licence area in which is situated the General Post Office of the capital city of:

                              (i)  New South Wales; or

                             (ii)  Victoria; or

                            (iii)  Queensland; or

                            (iv)  Western Australia; or

                             (v)  South Australia; or

                     (b)  the licence area known as Western Suburbs Sydney RA1.

news bulletin means a regularly scheduled news bulletin.

prime‑time hours means the hours:

                     (a)  beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and

                     (b)  ending at 10 am on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

regional commercial radio broadcasting licence means a commercial radio broadcasting licence that has a regional licence area.

regional licence area means a licence area that is not a metropolitan licence area.

Register has the same meaning as in Division 5A.

registrable media group has the same meaning as in Division 5A.

trigger event has the meaning given by section 61CB.

weather bulletin means a regularly scheduled weather bulletin that is transmitted:

                     (a)  as a stand‑alone bulletin; or

                     (b)  in conjunction with a news bulletin.

week means a 7‑day period that begins on a Sunday.

61CB  Trigger event

Transfer of licence

             (1)  For the purposes of this Division, if:

                     (a)  a regional commercial radio broadcasting licence is held by a person; and

                     (b)  the person transfers the licence to another person;

the transfer of the licence is a trigger event for the licence.

Formation of new registrable media group

             (2)  For the purposes of this Division, if:

                     (a)  a registrable media group comes into existence; and

                     (b)  the media group is not already entered in the Register; and

                     (c)  a regional commercial radio broadcasting licence is in the group;

the coming into existence of the group is a trigger event for the licence.

Change of controller of registrable media group

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

                     (a)  either:

                              (i)  a person who is not a controller of a registrable media group becomes a controller of the group; or

                             (ii)  a controller of a registrable media group ceases to be a controller of the group; and

                     (b)  a regional commercial radio broadcasting licence is in the group;

the change of controller is a trigger event for the licence.

61CC  What is local?

             (1)  The ACMA may, by legislative instrument, define what is meant by the expression local for the purposes of the application of:

                     (a)  this Division (other than sections 61CR and 61CS); or

                     (b)  a specified provision of this Division (other than sections 61CR and 61CS);

to a specified licence area.

             (2)  In making an instrument under subsection (1), the ACMA must have regard to:

                     (a)  the areas where separate programming is provided; and

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

Note:          Program includes advertising or sponsorship matter—see the definition of program in subsection 6(1).

Subdivision BMinimum service standards for local news and information

61CD  Licensee must meet minimum service standards for local news and information

                   If a trigger event for a regional commercial radio broadcasting licence occurs, then, after the occurrence of the trigger event, the licensee must meet:

                     (a)  minimum service standards for local news; and

                    (aa)  minimum service standards for local weather; and

                     (b)  minimum service standards for local community service announcements; and

                     (c)  minimum service standards for emergency warnings; and

                     (d)  if a declaration is in force under subsection 61CE(6)—minimum service standards for designated local content programs.

61CE  Minimum service standards for local news and information

Local news

             (1)  For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for local news during a particular week if, during that week, the number of eligible local news bulletins broadcast by the licensee is at least:

                     (a)  the local news target number; or

                     (b)  if the average weekly number of eligible local news bulletins broadcast under the licence during the benchmark year is a number greater than the local news target number—the greater number.

             (2)  For the purposes of subsection (1), the local news target number is:

                     (a)  5; or

                     (b)  if the Minister, by legislative instrument, declares that a greater number is the local news target number—the greater number.

Local weather

          (2A)  For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for local weather during a particular week if, during that week, the number of eligible local weather bulletins broadcast by the licensee is at least the local weather target number.

          (2B)  For the purposes of subsection (2A), the local weather target number is:

                     (a)  5; or

                     (b)  if the Minister, by legislative instrument, declares that a greater number is the local weather target number—the greater number.

Local community service announcements

             (3)  For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for local community service announcements during a particular week if, during that week, the number of local community service announcements broadcast by the licensee is at least the community service target number.

             (4)  For the purposes of subsection (3), the community service target number is:

                     (a)  1; or

                     (b)  if the Minister, by legislative instrument, declares that a greater number is the local community service target number—the greater number.

Emergency warnings

             (5)  For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for emergency warnings during a particular week if:

                     (a)  on one or more occasions during the week, one or more emergency service agencies asked the licensee to broadcast emergency warnings, and the licensee broadcast those warnings as and when asked to do so by those emergency service agencies; or

                     (b)  there was no occasion during the week when an emergency service agency asked the licensee to broadcast an emergency warning.

Designated local content programs

             (6)  For the purposes of this Subdivision, the Minister may, by legislative instrument, declare that a regional commercial radio broadcasting licence meets the minimum service standards for designated local content programs during a particular week if, during that week, the licensee meets such requirements in relation to designated local content programs as are specified in the declaration.

Subdivision CLocal content plans

61CF  Licensee must submit draft local content plan to the ACMA

             (1)  If a trigger event for a regional commercial radio broadcasting licence occurs, the licensee must give the ACMA:

                     (a)  a draft local content plan for the licence; and

                     (b)  a statement setting out such information about the licensee’s broadcasting operations as the ACMA requires;

within 90 days after the day on which the trigger event occurs.

             (2)  If the licensee does not comply with subsection (1), the ACMA may, by legislative instrument, determine that a plan in the terms specified in the determination is the approved local content plan for the licence.

Replacement of approved local content plan

             (3)  If an approved local content plan (the original plan) for a commercial radio broadcasting licence is in force:

                     (a)  a draft local content plan given under subsection (1) for the licence must be expressed to replace the original plan; and

                     (b)  if the draft local content plan becomes an approved local content plan for the licence—the original plan ceases to be in force.

             (4)  If:

                     (a)  the ACMA makes a determination under subsection (2) in relation to a commercial radio broadcasting licence; and

                     (b)  an approved local content plan (the original plan) for the licence was in force immediately before the determination takes effect;

then:

                     (c)  the approved local content plan as determined by the ACMA replaces the original plan; and

                     (d)  the original plan ceases to be in force.

61CG  Content of draft or approved local content plan

                   A draft or approved local content plan for a regional commercial radio broadcasting licence must set out how the licensee will comply with section 61CD.

61CH  Approval of draft local content plan

             (1)  If a commercial radio broadcasting licensee gives the ACMA a draft local content plan under section 61CF, the ACMA must:

                     (a)  approve the plan; or

                     (b)  refuse to approve the plan.

Approval of plan

             (2)  In deciding whether to approve a draft local content plan, the ACMA must have regard to:

                     (a)  whether the plan is adequate; and

                     (b)  whether the plan is sufficiently detailed; and

                     (c)  any relevant information set out in the paragraph 61CF(1)(b) statement; and

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

             (3)  If the ACMA approves the draft local content plan, the plan becomes an approved local content plan for the licence.

             (4)  If the ACMA approves the draft local content plan, the ACMA must give the licensee a written notice setting out the decision.

Refusal to approve plan

             (5)  If the ACMA refuses to approve the draft local content plan, the ACMA may, by legislative instrument, determine that a plan in the terms specified in the determination is the approved local content plan for the licence.

             (6)  If the ACMA refuses to approve the draft local content plan, the ACMA must give the licensee a written notice setting out the reasons for the refusal.

Occurrence of trigger event when ACMA’s decision is pending

             (7)  If:

                     (a)  a commercial radio broadcasting licensee gives the ACMA a draft local content plan under section 61CF as the result of the occurrence of a trigger event for the licence; and

                     (b)  another trigger event for the licence occurs before the ACMA makes a decision under subsection (1) in relation to the plan;

then:

                     (c)  the ACMA is taken to have refused to approve the plan; and

                     (d)  subsections (5) and (6) do not apply to that refusal.

61CJ  Register of approved local content plans

             (1)  The ACMA is to maintain a Register in which the ACMA includes approved local content plans as in force from time to time.

             (2)  The Register is to be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the internet.

61CK  Approved local content plan must be varied if minimum service standards are imposed or increased

             (1)  This section applies if:

                     (a)  an approved local content plan (the current plan) for a regional commercial radio broadcasting licence is in force; and

                     (b)  the Minister makes a declaration under:

                              (i)  paragraph 61CE(2)(b); or

                            (ia)  paragraph 61CE(2B)(b); or

                             (ii)  paragraph 61CE(4)(b); or

                            (iii)  subsection 61CE(6); and

                     (c)  in the case of a declaration under paragraph 61CE(2)(b)—the effect of the declaration is to raise the licensee’s minimum service standards for local news.

             (2)  The licensee must give the ACMA:

                     (a)  a draft variation of the current plan; and

                     (b)  a statement setting out such information about the licensee’s broadcasting operations as the ACMA requires;

within 90 days after the day on which the declaration is made.

             (3)  If the licensee does not comply with subsection (2), the ACMA may, by legislative instrument, vary the current plan.

61CL  Approved local content plan may be varied by the licensee

                   If an approved local content plan (the current plan) for a regional commercial radio broadcasting licence is in force, the licensee may give the ACMA:

                     (a)  a draft variation of the current plan; and

                     (b)  a statement setting out such information about the licensee’s broadcasting operations as the ACMA requires.

61CM  Approval of draft variation

             (1)  If, under section 61CK or 61CL, a commercial radio broadcasting licensee gives the ACMA a draft variation of an approved local content plan (the current plan), the ACMA must:

                     (a)  approve the variation; or

                     (b)  refuse to approve the variation.

Approval of variation

             (2)  The ACMA must not approve the variation unless the ACMA is satisfied that, if the licensee were to give the ACMA a draft local content plan in the same terms as the current plan as proposed to be varied, the ACMA would approve that draft.

             (3)  If the ACMA approves the variation, the current plan is varied accordingly.

             (4)  If the ACMA approves the variation, the ACMA must give the licensee a written notice setting out the decision.

Refusal to approve variation

             (5)  If the ACMA refuses to approve the variation, the ACMA must give the licensee a written notice setting out the reasons for the refusal.

             (6)  If the ACMA refuses to approve the variation, the ACMA may, by legislative instrument, vary the current plan.

Occurrence of trigger event when ACMA’s decision is pending

             (7)  If:

                     (a)  under section 61CK or 61CL, a commercial radio broadcasting licensee gives the ACMA a draft variation of an approved local content plan; and

                     (b)  a trigger event for the licence occurs after the receipt of the variation but before the ACMA makes a decision under subsection (1) in relation to the variation;

then:

                     (c)  the ACMA is taken to have refused to approve the variation; and

                     (d)  subsections (5) and (6) do not apply to that refusal.

61CN  ACMA may review approved local content plan

             (1)  If an approved local content plan for a regional commercial radio broadcasting licence is in force, the ACMA must review the plan at least once every 3 years.

             (2)  If, after such a review, the ACMA considers that the approved local content plan should be varied, the ACMA may, by legislative instrument, vary the plan.

61CP  Compliance with approved local content plan

                   If an approved local content plan for a regional commercial radio broadcasting licence is in force, the licensee must take all reasonable steps to ensure that the plan is complied with.

61CPA  Licensee must submit annual compliance report

             (1)  This section applies if an approved local content plan for a regional commercial radio broadcasting licence was in force during the whole or a part of a financial year.

             (2)  The regional commercial radio broadcasting licensee must, within 3 months after the end of the financial year, give the ACMA a report about the licensee’s compliance with the approved local content plan during the whole or the part, as the case may be, of the financial year.

             (3)  A report under subsection (2) must:

                     (a)  be in a form approved in writing by the ACMA; and

                     (b)  set out such information as the ACMA requires.

61CQ  Minister may direct the ACMA about the exercise of its powers

             (1)  The Minister may give the ACMA a written direction about the exercise of the powers conferred on the ACMA by this Subdivision.

             (2)  The ACMA must comply with a direction under subsection (1).

Subdivision D—Other local content requirements

61CR  Minister may direct the ACMA to conduct an investigation about other local content requirements

             (1)  The Minister may give the ACMA a written direction requiring the ACMA to conduct an investigation under section 170 into:

                     (a)  whether the ACMA should exercise its powers under section 43 to impose conditions requiring regional commercial radio broadcasting licensees to broadcast programs about matters of local significance; and

                     (b)  if so, the content of those conditions.

             (2)  The ACMA must comply with a direction under subsection (1).

             (3)  This section does not limit the powers conferred on the ACMA by section 43 or 170.

             (4)  This section does not limit the powers conferred on the Minister by section 61CS.

61CS  Minister may direct the ACMA to impose licence conditions relating to local content

             (1)  The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose conditions requiring regional commercial radio broadcasting licensees to broadcast programs about matters of local significance.

             (2)  The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose one or more specified conditions requiring regional commercial radio broadcasting licensees to broadcast programs about matters of local significance.

             (3)  The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose conditions requiring a specified regional commercial radio broadcasting licensee to broadcast programs about matters of local significance.

             (4)  The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose one or more specified conditions requiring a specified regional commercial radio broadcasting licensee to broadcast programs about matters of local significance.

             (5)  The ACMA must comply with a direction under subsection (1), (2), (3) or (4).

             (6)  This section does not limit the powers conferred on the ACMA by section 43.

61CT  Regular reviews of local content requirements

             (1)  At least once every 3 years, the Minister must cause to be conducted a review of the following matters:

                     (a)  the operation of sections 43B and 43C;

                     (b)  the operation of this Division;

                     (c)  the operation of paragraph 8(2)(c) of Schedule 2;

                     (d)  whether sections 43B and 43C should be amended;

                     (e)  whether this Division should be amended;

                      (f)  whether paragraph 8(2)(c) of Schedule 2 should be amended.

             (2)  For the purposes of facilitating the conduct of a review under subsection (1), the ACMA must make available information about regional commercial radio broadcasting licensees’ compliance with:

                     (a)  licence conditions imposed as a result of section 43B or 43C; and

                     (b)  licence conditions imposed as a result of an investigation directed under section 61CR; and

                     (c)  licence conditions imposed as a result of a direction under section 61CS; and

                     (d)  the licence condition set out in paragraph 8(2)(c) of Schedule 2.

             (3)  The Minister may give the ACMA a written direction requiring the ACMA to make available specified information for the purposes of facilitating the conduct of a review under subsection (1).

             (4)  The ACMA must comply with a direction under subsection (3).

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

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


 

Division 6Notification provisions

62  Requirement to notify control and directorships

Notification by licensee—general

             (1)  Each commercial television broadcasting licensee, commercial radio broadcasting licensee and datacasting transmitter licensee must, within 3 months after the end of each financial year, give to the ACMA in writing:

                     (a)  details of the persons who, to the knowledge of the licensee, were in a position to exercise control of the licence at the end of that financial year; and

                     (b)  the name of each person who was a director of the licensee at the end of that financial year.

             (2)  The details are to be provided in a form approved in writing by the ACMA.

Notification by restricted datacasting licensee

          (2A)  Each restricted datacasting licensee must, within 3 months after the end of each financial year that ends during the digital radio moratorium period for the licence area of a commercial radio broadcasting licence, give to the ACMA in writing:

                     (a)  details of the persons who, to the knowledge of the restricted datacasting licensee, were in a position to exercise control of the restricted datacasting licence at the end of that financial year; and

                     (b)  the name of each person who was a director of the restricted datacasting licensee at the end of that financial year.

          (2B)  The details are to be provided in a form approved in writing by the ACMA.

Notification by publisher of newspaper

             (3)  Each publisher of a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence must, within 3 months after the end of each financial year, give to the ACMA in writing:

                     (a)  details of the persons who, to the knowledge of the publisher, were in a position to exercise control of the newspaper at the end of that financial year; and

                     (b)  if the publisher is a company—the name of each person who was a director of the company at the end of that financial year.

             (4)  The details are to be provided in a form approved in writing by the ACMA.

Offence

             (5)  A person commits an offence if:

                     (a)  the person is subject to a requirement under subsection (1), (2A) or (3); and

                     (b)  the person omits to do an act; and

                     (c)  the omission breaches the requirement.

Penalty for contravention of this subsection:

                     (a)  if the breach relates to a commercial television broadcasting licence, a datacasting transmitter licence or a newspaper—500 penalty units; or

                     (b)  otherwise—50 penalty units.

63  Requirement to notify changes in control

Notification by licensee—general

             (1)  If a commercial television broadcasting licensee, commercial radio broadcasting licensee or datacasting transmitter licensee becomes aware that:

                     (a)  a person who was not in a position to exercise control of the licence has become in a position to exercise control of the licence; or

                     (b)  a person who was in a position to control the licence has ceased to be in that position;

the licensee must, within 5 days after becoming so aware, notify the ACMA in writing of that event.

             (2)  The details are to be provided in a form approved in writing by the ACMA.

Notification by restricted datacasting licensee

          (2A)  If, during the digital radio moratorium period for the licence area of a commercial radio broadcasting licence, a restricted datacasting licensee becomes aware that:

                     (a)  a person who was not in a position to exercise control of the restricted datacasting licence has become in a position to exercise control of the restricted datacasting licence; or

                     (b)  a person who was in a position to control the restricted datacasting licence has ceased to be in that position;

the restricted datacasting licensee must, within 5 days after becoming so aware, notify the ACMA in writing of that event.

          (2B)  The details are to be provided in a form approved in writing by the ACMA.

Notification by publisher of newspaper

             (3)  If the publisher of a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence becomes aware that:

                     (a)  a person who was not in a position to exercise control of the newspaper has become in a position to exercise control of the newspaper; or

                     (b)  a person who was in a position to control the newspaper has ceased to be in that position;

the publisher of the newspaper must, within 5 days after becoming so aware, notify the ACMA in writing of that event.

             (4)  The details are to be provided in a form approved in writing by the ACMA.

Offence

             (5)  A person commits an offence if:

                     (a)  the person is subject to a requirement under subsection (1), (2A) or (3); and

                     (b)  the person omits to do an act; and

                     (c)  the omission breaches the requirement.

Penalty for contravention of this subsection:

                     (a)  if the breach relates to a commercial television broadcasting licence, a datacasting transmitter licence or a newspaper—500 penalty units; or

                     (b)  otherwise—50 penalty units.

64  Person who obtains control of a licence or newspaper must notify the ACMA

Notification by controller of licence—general

             (1)  If a person who was not in a position to exercise control of a commercial television broadcasting licence, a commercial radio broadcasting licence or a datacasting transmitter licence becomes aware that that person is in a position to exercise control of the licence, the person must, within 5 days after becoming so aware, notify the ACMA in writing of that position.

             (2)  The details are to be provided in a form approved in writing by the ACMA.

Notification by controller of restricted datacasting licence

          (2A)  If, during the digital radio moratorium period for the licence area of a commercial radio broadcasting licence, a person who was not in a position to exercise control of a restricted datacasting licence becomes aware that that person is in a position to exercise control of the restricted datacasting licence, the person must, within 5 days after becoming so aware, notify the ACMA in writing of that position.

          (2B)  The details are to be provided in a form approved in writing by the ACMA.

Notification by controller of newspaper

             (3)  If a person who was not in a position to exercise control of a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence becomes aware that the person is in a position to exercise control of the newspaper, the person must, within 5 days after becoming so aware, notify the ACMA in writing of that position.

             (4)  The details are to be provided in a form approved in writing by the ACMA.

Offence

             (5)  A person commits an offence if:

                     (a)  the person is subject to a requirement under subsection (1), (2A) or (3); and

                     (b)  the person omits to do an act; and

                     (c)  the omission breaches the requirement.

Penalty for contravention of this subsection:

                     (a)  if the breach relates to a commercial television broadcasting licence, a datacasting transmitter licence or a newspaper—500 penalty units; or

                     (b)  otherwise—50 penalty units.

65  Requirement to notify control and directorships as at 1 February 2007

Notification by licensee

             (1)  Each commercial television broadcasting licensee and commercial radio broadcasting licensee must, within 5 days after 1 February 2007, give to the ACMA in writing:

                     (a)  details of the persons who, to the knowledge of the licensee, were in a position to exercise control of the licence at the start of 1 February 2007; and

                     (b)  the name of each person who was a director of the licensee at the start of 1 February 2007.

             (2)  The details are to be provided in a form approved in writing by the ACMA.

Notification by publisher of newspaper

             (3)  If, at the start of 1 February 2007, a newspaper is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence, the publisher of the newspaper must, within 5 days after 1 February 2007, give to the ACMA in writing:

                     (a)  details of the persons who, to the knowledge of the publisher, were in a position to exercise control of the newspaper at the start of 1 February 2007; and

                     (b)  if the publisher is a company—the name of each person who was a director of the company at the start of 1 February 2007.

             (4)  The details are to be provided in a form approved in writing by the ACMA.

Notification by controller

             (5)  If, at the start of 1 February 2007, a person is in a position to exercise control of:

                     (a)  a commercial television broadcasting licence; or

                     (b)  a commercial radio broadcasting licence; or

                     (c)  a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence;

the person must, within 5 days after 1 February 2007, notify the ACMA in writing of that position.

             (6)  The details are to be provided in a form approved in writing by the ACMA.

Offence

             (7)  A person commits an offence if:

                     (a)  the person is subject to a requirement under subsection (1), (3) or (5); and

                     (b)  the person omits to do an act; and

                     (c)  the omission breaches the requirement.

Penalty for contravention of this subsection:

                     (a)  if the breach relates to a commercial television broadcasting licence or a newspaper—500 penalty units; or

                     (b)  otherwise—50 penalty units.

65A  Strict liability offences

                   An offence against section 62, 63, 64 or 65 is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

65B  Designated infringement notice provisions

                   Sections 62, 63, 64 and 65 are designated infringement notice provisions.


 

Division 7Approval of temporary breaches

66  Offence for breaches without approval

             (1)  If:

                     (a)  a transaction takes place that places a person in breach of a provision of Division 2 or 3; and

                     (b)  the person knew, or ought reasonably to have known, that a result of the transaction would be to place the person in breach of a provision of Division 2 or 3; and

                     (c)  the person was a party to the transaction or was in a position to prevent the transaction taking place; and

                     (d)  the ACMA has not approved the breach under section 67;

the person is guilty of an offence.

Penalty: 

                     (e)  if the breach relates to a commercial television broadcasting licence or datacasting transmitter licence—20,000 penalty units; or

                      (f)  if the breach relates to a commercial radio broadcasting licence—2,000 penalty units.

          (1A)  In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the provision breached was a provision of Division 2 or 3.

             (2)  A person who breaches subsection (1) is guilty of a separate offence in respect of each day (including a day of a conviction under this subsection or any subsequent day) during which the breach of Division 2 or 3 continues.

             (3)  A prosecution for an offence under this section against a person in relation to a transaction cannot be commenced if the ACMA has given the person a notice under section 70 in relation to the transaction and the time for compliance with the notice has not expired.

67  Applications for prior approval of temporary breaches

             (1)  A person may, before a transaction takes place or an agreement is entered into that would place a person in breach of a provision of Division 2 or 3, make an application to the ACMA for an approval of the breach.

             (2)  An application is to be made in accordance with a form approved in writing by the ACMA.

             (3)  If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  If, after receiving an application, the ACMA is satisfied that:

                     (a)  if the transaction took place or the agreement was entered into, it would place a person in breach of a provision of Division 2 or 3; and

                     (b)  the person will take action to ensure that the breach of that provision ceases; and

                     (c)  the breach is incidental to the objectives of the transaction or agreement;

the ACMA may, by notice in writing given to the applicant, approve the breach arising as a result of the transaction or agreement and specify a period during which action must be taken to ensure that the breach ceases, being a period that commences on the day on which the transaction takes place or the agreement is entered into.

             (5)  The period specified in the notice must be 6 months, one year or 2 years.

             (6)  The ACMA may specify in a notice the action that the ACMA considers the person is to take so that the person is no longer in breach of the relevant provision.

             (7)  If the ACMA does not, within 45 days after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

approve or refuse to approve the breach arising as a result of the transaction or agreement, the ACMA is to be taken to have approved the breach and allowed a period of 2 years before which the breach must cease.

68  Extension of time for compliance with notice

             (1)  A person who has been given a notice under section 67 may, within 3 months before the end of the period specified in the notice, apply in writing to the ACMA for an extension of that period.

             (2)  The ACMA is not required to grant an extension, but may do so if, in its opinion, an extension is appropriate in all the circumstances.

             (3)  If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  The ACMA must not grant more than one extension, and the period of any extension must not exceed:

                     (a)  the period originally specified in the notice; or

                     (b)  one year;

whichever is the lesser.

             (5)  In deciding whether to grant an extension to an applicant, the ACMA is to have regard to:

                     (a)  the endeavours that the applicant made in attempting to comply with the notice; and

                     (b)  the difficulties that the applicant experienced in attempting to comply with the notice;

but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.

             (6)  If the ACMA does not, within 45 days after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:

                     (c)  the period originally specified in the notice; or

                     (d)  one year;

whichever is the lesser.

69  Breach of notice under section 67 to constitute an offence

                   A person who fails to comply with a notice under section 67 is guilty of an offence.

Penalty: 

                     (a)  if the breach relates to a commercial television broadcasting licence or datacasting transmitter licence—20,000 penalty units; or

                     (b)  if the breach relates to a commercial radio broadcasting licence—2,000 penalty units.


 

Division 8Action by the ACMA

70  Notices by the ACMA

             (1)  If the ACMA is satisfied that a person is in breach of a provision of Division 2 or 3, the ACMA may, by notice in writing given to:

                     (a)  the person; or

                     (b)  if the person is not the licensee and the breach is one that can be remedied by the licensee—the licensee;

direct the person or the licensee to take action so that the person is no longer in breach of that provision.

             (2)  The ACMA is not to give a notice to a person under subsection (1) in relation to a breach if an approval under section 67 has been given in respect of the breach and the period specified under that section, or an extension of that period, has not expired.

             (3)  The notice is to specify a period during which the person must take action to ensure that the person is no longer in that position.

             (4)  The period must be one month, 6 months, one year or 2 years.

             (5)  If the ACMA is satisfied that the breach was deliberate and flagrant, the period specified in the notice must be one month.

             (6)  If the ACMA gives a notice under subsection (1) in respect of a breach that the ACMA had approved under section 67, the ACMA must specify a period of one month in the notice under subsection (1).

             (7)  If the ACMA is satisfied that the person breached the relevant provision as a result of the actions of other persons none of whom is an associate of the person, a period of one year or 2 years must be specified, but such a period must not be specified in other circumstances.

             (8)  The Parliament recognises that, if a period of one month is specified in a notice, the person to whom the notice is given or another person may be required to dispose of shares in a way, or otherwise make arrangements, that could cause the person a considerable financial disadvantage. Such a result is seen as necessary in order to discourage deliberate and flagrant breaches of this Part.

71  Extension of time for compliance with notice

             (1)  A person who has been given a notice under section 70 may, within 3 months before the end of the period specified in the notice, apply in writing to the ACMA for an extension of that period.

             (2)  An application for an extension cannot be made if the period specified in the notice was one month.

             (3)  The ACMA is not required to grant an extension, but may do so if, in its opinion, an extension is appropriate in all the circumstances.

             (4)  If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (5)  The ACMA must not grant more than one extension, and the period of any extension must not exceed:

                     (a)  the period originally specified in the notice; or

                     (b)  one year;

whichever is the lesser.

             (6)  In deciding whether to grant an extension to a person, the ACMA is to have regard to:

                     (a)  the endeavours that the applicant made in attempting to comply with the notice; and

                     (b)  the difficulties experienced by the applicant in attempting to comply with the notice; and

                     (c)  the seriousness of the breach that led to the giving of the notice;

but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.

             (7)  If the ACMA does not, within 45 days after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:

                     (c)  the period originally specified in the notice; or

                     (d)  one year;

whichever is the lesser.

72  Breach of notice under section 70 to constitute an offence

                   A person who fails to comply with a notice under section 70 is guilty of an offence.

Penalty: 

                     (a)  if the breach relates to a commercial television broadcasting licence or datacasting transmitter licence—20,000 penalty units; or

                     (b)  if the breach relates to a commercial radio broadcasting licence—2,000 penalty units.


 

Division 9Special provision for small markets

73  Additional licence under section 38A not to result in breach of ownership limits

             (1)  If an additional licence has been allocated under section 38A to the holder of an existing licence, the existing licence and additional licence are to be treated, for the purposes of this Part, as being only one licence.

             (2)  This section does not apply to the licences at any time after either of the licences is first held by a different person (whether or not it continues to be held by a different person).

73A  Additional licence allocated under section 38B not to result in breach of control rules

             (1)  If an additional licence is allocated under section 38B, then for the purposes of Divisions 2 and 3 of this Part:

                     (a)  the licence is to be disregarded in relation to a person who is in a position to exercise control of that licence at the time it is allocated; and

                     (b)  the licence is to be so disregarded until that person first ceases to be in a position to exercise control of that licence.

             (2)  If, during the time a licence is disregarded in relation to a person under subsection (1), that person is in a position to exercise control of another person who is in a position to exercise control of the licence, then, for the purposes of Divisions 2 and 3 of this Part, the licence is also to be disregarded during that time in relation to that other person.


 

Division 10Prior opinions by the ACMA

74  Requests to ACMA to give an opinion on whether a person is in a position to control a licence, a newspaper or a company

             (1)  A person may apply to the ACMA for an opinion as to whether:

                     (a)  the person is in a position to exercise control of a commercial television broadcasting licence, a commercial radio broadcasting licence, a satellite subscription television broadcasting licence, a datacasting transmitter licence, a newspaper or a company; or

                     (b)  the person would, if a transaction took place or a contract, agreement or arrangement were entered into, being one details of which are given in the application, be in a position to exercise control of a commercial television broadcasting licence, a commercial radio broadcasting licence, a satellite subscription television broadcasting licence, a datacasting transmitter licence, a newspaper or a company.

             (2)  An application must be in accordance with a form approved in writing by the ACMA, and must state the applicant’s opinion as to whether the applicant is, or would be, in a position to exercise control of the commercial television broadcasting licence, the commercial radio broadcasting licence, the satellite subscription television broadcasting licence, the datacasting transmitter licence, the newspaper or the company.

             (3)  If the ACMA considers that additional information is required before an opinion can be given, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  The ACMA must, as soon as practicable after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

give the applicant, in writing, its opinion as to whether the applicant is in a position to exercise control of the relevant licence, newspaper or company.

             (5)  If the ACMA has given an opinion under this section to a person that the person is not in a position to exercise control of a licence or newspaper, neither the ACMA nor any other Government agency may, while the circumstances relating to the applicant and the licence, a newspaper or a company remain substantially the same as those advised to the ACMA in relation to the application for the opinion, take any action against the person under this Act on the basis that the person is in a position to exercise control of the licence, newspaper or company.

             (6)  If the ACMA does not, within 45 days after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

give the applicant, in writing, its opinion as to whether the applicant is in a position to exercise control of the relevant licence, newspaper or company, the ACMA is to be taken to have given an opinion at the end of that period that accords with the applicant’s opinion.

             (7)  The ACMA may charge a fee for providing an opinion under this section.


 

Division 11Miscellaneous

75  Register of matters under this Part

             (1)  The ACMA is to maintain a Register of:

                    (aa)  licences granted under section 38A or 38B; and

                     (a)  notifications under Division 6; and

                     (b)  approvals given by the ACMA under section 67; and

                     (c)  extensions granted by the ACMA under section 68; and

                     (d)  notices given by the ACMA under section 70; and

                     (e)  extensions granted by the ACMA under section 71.

             (2)  The ACMA is not to include in the Register an approval under section 67 until the relevant transaction or agreement has taken place or been entered into.

             (3)  The Register is to be open for public inspection, and a person is entitled to be given a copy of, or an extract from, any entry in the Register.

             (4)  The ACMA may charge fees for inspections of the Register or for the provision of copies of or extracts from the Register.

             (5)  The ACMA may supply copies of or extracts from the Register certified by a member, and a copy or extract so certified is admissible in evidence in all courts and proceedings without further proof or production of the original.

76  Continuing offences

                   In order to avoid any doubt, it is declared that section 4K of the Crimes Act 1914 applies to obligations under this Part to comply with a notice and other obligations under this Part to do things within a particular period.

77  Part has effect notwithstanding Trade Practices Act

                   The provisions of this Part have effect notwithstanding the Trade Practices Act 1974.

78  Part not to invalidate appointments

                   Nothing in this Part invalidates an appointment of a person as a director of a company.


 

Part 6Community broadcasting licences

  

79  Interpretation

                   In this Part, company includes an incorporated association.

79A  Application

                   This Part does not apply in relation to community broadcasting licences that are temporary community broadcasting licences.

Note:          Part 6A deals with temporary community broadcasting licences.

80  ACMA to advertise for applications for BSB community broadcasting licences

             (1)  Where the ACMA is going to allocate one or more community broadcasting licences that are broadcasting services bands licences, the ACMA is to advertise, in a manner determined by the ACMA, for applications from companies that:

                     (a)  are formed in Australia or in an external Territory; and

                     (b)  represent a community interest.

             (2)  The advertisements are to include:

                     (a)  the date before which applications must be received by the ACMA; and

                     (b)  a statement specifying how details of:

                              (i)  the conditions that are to apply to the licence; and

                             (ii)  the licence area of the licence; and

                            (iii)  any priorities that the Minister has, under subsection 84(1), directed the ACMA to observe in the allocation of that licence or those licences;

                            can be obtained.

             (3)  Applications must be in accordance with a form approved in writing by the ACMA.

81  When licences must not be allocated

             (1)  A licence is not to be allocated to an applicant if:

                     (a)  in the case of an applicant for a CTV licence—the applicant is not a company limited by guarantee within the meaning of the Corporations Act 2001; or

                     (b)  the ACMA decides that subsection 83(2) applies to the applicant.

             (2)  Paragraph (1)(b) does not require the ACMA to consider the application of subsection 83(2) in relation to an applicant before allocating a licence to the applicant.

82  Other community broadcasting licences

             (1)  The ACMA may allocate to a person, on application in writing by the person, a community broadcasting licence that is not a broadcasting services bands licence.

          (1A)  Licences under subsection (1) are to be allocated on the basis of one licence per service.

             (2)  Applications must:

                     (a)  be in accordance with a form approved in writing by the ACMA; and

                     (b)  be accompanied by the application fee determined in writing by the ACMA.

83  When persons are regarded as suitable

             (1)  For the purposes of this Part, a company is a suitable community broadcasting licensee or a suitable applicant for a community broadcasting licence if the ACMA has not decided that subsection (2) applies to the company.

             (2)  The ACMA may, if it is satisfied that allowing a particular company to provide or continue to provide broadcasting services under a community broadcasting licence would lead to a significant risk of:

                     (a)  an offence against this Act or the regulations being committed; or

                    (aa)  a breach of a civil penalty provision occurring; or

                     (b)  a breach of the conditions of the licence occurring;

decide that this subsection applies to the company.

             (3)  In deciding whether such a risk exists, the ACMA is to take into account:

                     (a)  the business record of the company; and

                     (b)  the company’s record in situations requiring trust and candour; and

                     (c)  the business record of the chief executive and each director and secretary of the applicant; and

                     (d)  the record in situations requiring trust and candour of each such person; and

                     (e)  whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and

                      (f)  whether a civil penalty order has been made against:

                              (i)  the company; or

                             (ii)  a person referred to in paragraph (c) or (d).

             (4)  This section does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).

84  Allocation of community broadcasting licences

             (1)  The Minister may give directions to the ACMA to give priority to a particular community interest or interests, whether generally or in a particular licence area, in allocating community licences that are broadcasting services bands licences.

             (2)  In deciding whether to allocate a community broadcasting licence that is a broadcasting services bands licence to an applicant or to one of a group of applicants, the ACMA is to have regard to:

                     (a)  the extent to which the proposed service or services would meet the existing and perceived future needs of the community within the licence area of the proposed licence; and

                     (b)  the nature and diversity of the interests of that community; and

                     (c)  the nature and diversity of other broadcasting services (including national broadcasting services) available within that licence area; and

                     (d)  the capacity of the applicant to provide the proposed service or services; and

                     (e)  the undesirability of one person being in a position to exercise control of more than one community broadcasting licence that is a broadcasting services bands licence in the same licence area; and

                      (f)  the undesirability of the Commonwealth, a State or a Territory or a political party being in a position to exercise control of a community broadcasting licence.

84A  Designated community radio broadcasting licences to provide analog or digital services

Licences in force immediately before the commencement of this section

             (1)  If a designated community radio broadcasting licence was in force immediately before the commencement of this section, the licence is taken, for the purposes of this Act, to have been allocated as a licence to provide an analog community radio broadcasting service.

Licences allocated before the digital radio start‑up day for the licence area

             (2)  If the ACMA allocates a designated community radio broadcasting licence after the commencement of this section but before the digital radio start‑up day for the licence area, the licence must be allocated as a licence to provide an analog community radio broadcasting service.

Licences allocated on or after digital radio start‑up day for the licence area

             (3)  If the ACMA allocates a designated community radio broadcasting licence on or after the digital radio start‑up day for the licence area, the licence must be allocated as:

                     (a)  a licence to provide an analog community radio broadcasting service; or

                     (b)  a licence to provide digital community radio broadcasting services.

Licence conditions

             (4)  Subject to subsection (5), if a designated community radio broadcasting licence is or was allocated as a licence to provide an analog community radio broadcasting service, the licence is subject to the condition that the licensee may only provide an analog community radio broadcasting service under the licence.

             (5)  If:

                     (a)  a designated community radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

                     (b)  the licence authorised the licensee to provide an analog community radio broadcasting service in the licence area;

subsection (4) ceases to apply in relation to the licence at the start of the digital radio start‑up day for the licence area.

             (6)  If a designated community radio broadcasting licence is allocated as a licence to provide digital community radio broadcasting services, the licence is subject to the condition that the licensee may only provide digital community radio broadcasting services under the licence.

85  ACMA not required to allocate community broadcasting licence to any applicant

                   The ACMA is not required to allocate a community broadcasting licence to any applicant.

85A  Services authorised by designated community radio broadcasting licences

Licences in force immediately before the commencement of this section

             (1)  If:

                     (a)  a designated community radio broadcasting licence was in force immediately before the commencement of this section; and

                     (b)  the licence authorised the licensee to provide an analog community radio broadcasting service in the licence area;

then, during the period:

                     (c)  beginning at the start of the day on which this section commences; and

                     (d)  ending immediately before the digital radio start‑up day for the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

Licences allocated on or after the commencement of this section

             (2)  If:

                     (a)  a designated community radio broadcasting licence is allocated on or after the commencement of this section but before the digital radio start‑up day for the licence area; and

                     (b)  the licence is allocated as a licence to provide an analog community radio broadcasting service in the licence area;

then, during the period:

                     (c)  beginning at the start of the day on which the licence is allocated; and

                     (d)  ending immediately before the digital radio start‑up day for the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

Licences in force immediately before the digital radio start‑up day for the licence area

             (3)  If:

                     (a)  a designated community radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

                     (b)  the licence authorised the licensee to provide an analog community radio broadcasting service in the licence area;

then, after the digital radio start‑up day for the licence area, the licence is taken to authorise the licensee to provide the following services in the licence area:

                     (c)  the analog community radio broadcasting service;

                     (d)  one or more digital community radio broadcasting services.

Licences allocated on or after digital radio start‑up day for the licence area

             (4)  If:

                     (a)  a designated community radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and

                     (b)  the licence is allocated as a licence to provide an analog community radio broadcasting service in the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

             (5)  If:

                     (a)  a designated community radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and

                     (b)  the licence is allocated as a licence to provide digital community radio broadcasting services in the licence area;

the licence is taken to authorise the licensee to provide one or more digital community radio broadcasting services in the licence area.

86  Conditions of community broadcasting licences

             (1)  Each community broadcasting licence is subject to:

                     (a)  the conditions set out in Part 5 of Schedule 2; and

                     (b)  such other conditions as are imposed under section 87.

             (2)  In addition, CTV licences are subject to such other conditions as are imposed by or under section 87A.

87  ACMA may impose additional conditions on community broadcasting licences

             (1)  The ACMA may, by notice in writing given to a community broadcasting licensee, vary or revoke a condition of the licence or impose an additional condition on the licence.

             (2)  If the ACMA proposes to vary or revoke a condition or to impose a new condition, the ACMA must give to the licensee:

                     (a)  written notice of its intention; and

                     (b)  a reasonable opportunity to make representations to the ACMA in relation to the proposed action; and

                     (c)  publish the proposed changes in the Gazette.

             (3)  This section does not allow the ACMA to vary or revoke a condition set out in Part 5 of Schedule 2.

             (4)  If the ACMA varies or revokes a condition or imposes a new condition, the ACMA must publish the variation, the fact of the revocation or the new condition, as the case may be, in the Gazette.

             (5)  Action taken under subsection (1) must not be inconsistent with:

                     (a)  determinations and clarifications under section 19; or

                     (b)  conditions set out in Part 5 of Schedule 2; or

                     (c)  if the licence is a CTV licence—any conditions imposed on the licence by or under section 87A.

87A  Additional conditions on CTV licences

Policy underlying additional conditions

             (1)  It is the intention of the Parliament that services provided under CTV licences be regulated in a manner that causes them not to operate in the same way as commercial television broadcasting services.

Conditions relating to sale of access to air‑time

             (2)  Each CTV licence is subject to the condition that the licensee must not sell access to more than 2 hours of air‑time in any day to a particular person who operates a business for profit or as part of a profit‑making enterprise, unless the person is a company that has a sole or dominant purpose of assisting a person in education or learning.

             (3)  Each CTV licence is subject to the condition that the licensee must not sell access to a combined total of more than 8 hours of air‑time in any day to people who operate businesses for profit or as part of profit‑making enterprises.

             (4)  Each CTV licence is subject to the condition that the licensee must not sell access to more than 8 hours of air‑time in any day to a particular person.

             (5)  For the purposes of the conditions imposed by subsections (2), (3) and (4), the sale of access to air‑time to any of the following is taken to be the sale of access to air‑time to a company:

                     (a)  the sale of access to air‑time to any person in a position to exercise control of the company;

                     (b)  the sale of access to air‑time to any related body corporate (within the meaning of the Corporations Act 2001) of the company.

             (6)  The ACMA may, by written determination, impose other conditions on all CTV licences relating to sale of access to air‑time.

Conditions relating to other matters

             (7)  The ACMA may, by written determination, impose other conditions on all CTV licences, including, but not limited to, conditions relating to:

                     (a)  community access to air‑time; or

                     (b)  the governance of CTV licensees (including conditions relating to provisions that the constitution of the licensee must at all times contain); or

                     (c)  the provision of annual reports to the ACMA and the form in which they are to be provided.

Changes to conditions

             (8)  The ACMA may, by written determination, vary or revoke any condition imposed by or under this section.

             (9)  The ACMA must, before imposing, varying or revoking a condition under this section, seek public comment on the proposed condition or the proposed variation or revocation.

           (10)  Action taken under this section must not be inconsistent with:

                     (a)  determinations and clarifications under section 19; or

                     (b)  conditions set out in Part 5 of Schedule 2.

Determinations are disallowable instruments

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

Definitions

           (12)  In this section:

access, in relation to air‑time, means the right to select or provide programs to be broadcast during the air‑time.

air‑time means time available for broadcasting programs on a community broadcasting service.

sell, in relation to access to air‑time, means enter into any arrangement under which a person receives any consideration in cash or in kind in relation to provision of the access to air‑time.

87B  Special licence condition relating to digital community radio broadcasting services

             (1)  This section applies to a designated community radio broadcasting licence if the licence authorises the licensee to provide one or more digital community radio broadcasting services.

             (2)  The licence is subject to the condition that the licensee must not provide a digital community radio broadcasting service under the licence unless:

                     (a)  the service is transmitted using a multiplex transmitter; and

                     (b)  the operation of the multiplex transmitter is authorised by a digital radio multiplex transmitter licence.

88  Matters to which conditions may relate

             (1)  Conditions of community broadcasting licences must be relevant to community broadcasting services.

             (2)  Without limiting the range of conditions that may be imposed, the ACMA may impose a condition on a community broadcasting licensee:

                     (a)  requiring the licensee to comply with a code of practice that is applicable to the licensee; or

                     (b)  designed to ensure that a breach of a condition by the licensee does not recur.

89  Duration of community broadcasting licences

                   Subject to subsection 90(1E) and Part 10, community broadcasting licences remain in force for 5 years.

90  Applications for renewal of community broadcasting licences

             (1)  The ACMA may renew a community broadcasting licence if the licensee makes an application for renewal of the licence, in accordance with a form approved in writing by the ACMA.

          (1A)  Subject to subsection (1C), an application for renewal must be made no earlier than one year before the licence is due to expire, but no later than the earlier of the following times:

                     (a)  26 weeks before the licence is due to expire;

                     (b)  a time that is notified in writing to the licensee by the ACMA.

          (1B)  A time that is notified under paragraph (1A)(b) must be at least 4 weeks after the day on which it is notified to the licensee.

Late applications

          (1C)  The ACMA may consider a late application for the renewal of a community broadcasting licence if:

                     (a)  the licensee makes the application before the time when the licence is due to expire; and

                     (b)  the application is accompanied by a written statement setting out the licensee’s reasons for the lateness of the application; and

                     (c)  the ACMA considers that there are exceptional circumstances that warrant the consideration of the application.

          (1D)  In deciding whether there are exceptional circumstances that warrant the consideration of the application, the ACMA must have regard to:

                     (a)  how late the application is; and

                     (b)  the reasons given by the licensee for the lateness of the application; and

                     (c)  the number of paid staff (if any) employed by the licensee; and

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

          (1E)  If:

                     (a)  the ACMA decides, under subsection (1C), to consider a late application for the renewal of a community broadcasting licence; and

                     (b)  the ACMA does not make a decision on the application before the time when the licence is due to expire;

the licence remains in force until the ACMA makes a decision on the application.

           (1F)  If:

                     (a)  the ACMA decides, under subsection (1C), to consider a late application for the renewal of a community broadcasting licence; and

                     (b)  the ACMA does not make a decision on the application within 26 weeks after receiving the application;

the ACMA is taken to have made, at the end of that 26‑week period, a decision under section 91 to refuse to renew the licence.

Notification

             (2)  If the ACMA receives an application for renewal, the ACMA must notify in the Gazette the fact that the application has been made.

91  ACMA may renew community broadcasting licences

             (1)  Subject to subsection (2), if the ACMA receives an application under section 90, the ACMA may, by notice in writing given to the licensee, renew the licence for:

                     (a)  if:

                              (i)  the ACMA renews the licence after the time when the licence was due to expire; and

                             (ii)  under subsection 90(1E), the licence remained in force until the ACMA made a decision on the application;

                            the period:

                            (iii)  beginning immediately after the time when the ACMA made a decision on the application; and

                            (iv)  ending at the end of the period of 5 years that began immediately after the time when the licence was due to expire; or

                     (b)  otherwise—the period of 5 years beginning immediately after the time when the licence is due to expire.

             (2)  The ACMA must refuse to renew a community broadcasting licence if the ACMA decides that subsection 83(2) applies to the licensee.

          (2A)  The ACMA may refuse to renew a community broadcasting licence that is a broadcasting services bands licence if, having regard to the matters in paragraphs 84(2)(a) to (f), it considers that it would not allocate such a licence if it were deciding whether to allocate the licence to the licensee.

             (3)  The ACMA is not required to conduct an investigation or a hearing into whether a licence should be renewed.

91A  Transfer of community broadcasting licences

Application for approval of transfer

             (1)  A community broadcasting licensee may apply to the ACMA for approval of the transfer of the community broadcasting licence to another person.

             (2)  Applications must:

                     (a)  be in accordance with a form approved in writing by the ACMA; and

                     (b)  be accompanied by the application fee determined in writing by the ACMA.

Decision about approval of transfer

             (3)  After considering an application for approval of the transfer of a community broadcasting licence, the ACMA must, by written notice given to the applicant:

                     (a)  approve the transfer; or

                     (b)  refuse to approve the transfer.

Criteria

             (4)  The ACMA must not approve the transfer of a community broadcasting licence that is a broadcasting services bands licence if:

                     (a)  the proposed transferee is not a company that:

                              (i)  was formed in Australia or in an external Territory; and

                             (ii)  represents a community interest; or

                     (b)  in the case of a transfer of a CTV licence—the proposed transferee is not a company limited by guarantee within the meaning of the Corporations Act 2001; or

                     (c)  the ACMA decides that subsection 83(2) applies to the proposed transferee.

             (5)  Paragraph (4)(c) does not require the ACMA to consider the application of subsection 83(2) in relation to a proposed transferee before approving the transfer of a licence to the proposed transferee.

             (6)  The ACMA must not approve the transfer of a community broadcasting licence unless the ACMA is satisfied that:

                     (a)  if the licence has not been renewed—the proposed transferee represents the same community interest as the original licensee represented when the licence was allocated; or

                     (b)  if the licence has been renewed on one or more occasions—the proposed transferee represents the same community interest as the applicant for renewal represented when the licence was last renewed.

             (7)  In deciding whether to approve the transfer of a community broadcasting licence, the ACMA must have regard to:

                     (a)  the principle that, except in special circumstances, the transfer should not be approved if consideration has been, or is to be, provided to the applicant in relation to the proposed transfer; and

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

Transfer

             (8)  If the ACMA has approved the transfer of a community broadcasting licence to a particular person, the community broadcasting licensee may, within 90 days after the approval was given, transfer the community broadcasting licence to the person.

92  Surrender of community broadcasting licences

                   A community broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence.


 

Part 6ATemporary community broadcasting licences

  

92A  Interpretation

                   In this Part:

company includes an incorporated association.

licence period means the period of a temporary community broadcasting licence determined by the ACMA under paragraph 92G(1)(c) or varied by the ACMA under section 92J.

timing conditions means the conditions of a temporary community broadcasting licence that:

                     (a)  are about the times in which the licence allows community broadcasting services to be provided; and

                     (b)  are determined by the ACMA under paragraph 92G(1)(b) or varied by the ACMA under section 92J.

92B  Temporary community broadcasting licences

             (1)  The ACMA may allocate to a person, on application in writing by the person, a temporary community broadcasting licence.

             (2)  Applications must be in accordance with a form approved in writing by the ACMA.

92C  Applicants for temporary community broadcasting licences

             (1)  The ACMA is not to allocate a temporary community broadcasting licence to an applicant unless the applicant:

                     (a)  is a company that is formed in Australia or in an external Territory; and

                     (b)  represents a community interest.

             (2)  The ACMA is not to allocate a licence to an applicant if the ACMA decides that subsection 92D(2) applies to the applicant in relation to the licence. However, the ACMA is not required to consider the application of subsection 92D(2) to the applicant before allocating the licence.

             (3)  The ACMA may refuse to allocate a licence to an applicant if the applicant was a temporary community broadcasting licensee for a period but did not provide community broadcasting services in that period. This subsection does not limit the ACMA’s discretion to refuse to allocate a licence.

92D  When applicants and licensees are regarded as suitable

             (1)  A company is a suitable applicant or suitable licensee in relation to a temporary community broadcasting licence if the ACMA has not decided that subsection (2) applies to the company in relation to the licence.

Note:          It is a condition of a temporary community broadcasting licence that the licensee remain a suitable licensee: see paragraph 9(2)(a) of Schedule 2.

             (2)  The ACMA may, if it is satisfied that allowing a company to provide or continue to provide broadcasting services under a temporary community broadcasting licence would lead to a significant risk of:

                     (a)  an offence against this Act or the regulations being committed; or

                    (aa)  a breach of a civil penalty provision occurring; or

                     (b)  a breach of the conditions of the licence occurring;

decide that this subsection applies to the company in relation to the licence.

             (3)  In deciding whether such a risk exists, the ACMA is to take into account only:

                     (a)  the business record of the company; and

                     (b)  the company’s record in situations requiring trust and candour; and

                     (c)  the business record of the chief executive and each director and secretary of the applicant; and

                     (d)  the record in situations requiring trust and candour of each such person; and

                     (e)  whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and

                      (f)  whether a civil penalty order has been made against:

                              (i)  the company; or

                             (ii)  a person referred to in paragraph (c) or (d).

             (4)  This section does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).

92E  Criteria for deciding whether to allocate a licence

             (1)  In deciding whether to allocate a temporary community broadcasting licence to an applicant or to one of a group of applicants, the ACMA may have regard to:

                     (a)  the undesirability of one person being in a position to exercise control of more than one community broadcasting licence that is a broadcasting services bands licence in the same licence area; and

                     (b)  the undesirability of the Commonwealth, a State or a Territory or a political party being in a position to exercise control of a temporary community broadcasting licence.

             (2)  In deciding whether to allocate a temporary community broadcasting licence to an applicant or to one of a group of applicants, the ACMA is not to have regard to:

                     (a)  the extent to which the proposed service would meet the existing and perceived future needs of the community within the licence area of the proposed licence; and

                     (b)  the nature and diversity of the interests of that community; and

                     (c)  the nature and diversity of other broadcasting services (including national broadcasting services) available within that licence area; and

                     (d)  the capacity of the applicant to provide the proposed service.

92F  Licences to accord with alternative planning procedures

                   The ACMA is not to allocate a temporary community broadcasting licence except in accordance with a determination of the ACMA under section 34.

92G  Licence area, timing conditions and licence period

             (1)  Before allocating a temporary community broadcasting licence, the ACMA is to:

                     (a)  designate a particular area in Australia as the licence area of the licence; and

                     (b)  determine the timing conditions of the licence; and

                     (c)  determine a period of up to 12 months as the licence period.

             (2)  In determining the timing conditions and licence period, the ACMA is to have regard to:

                     (a)  any other applications for temporary community broadcasting licences in the licence area of the proposed licence; and

                     (b)  any other temporary community broadcasting licences in the licence area of the proposed licence; and

                     (c)  such other matters as the ACMA thinks fit.

92H  Conditions of temporary community broadcasting licences

                   Each temporary community broadcasting licence is subject to:

                     (a)  the conditions set out in Part 5 (other than paragraph 9(1)(h)) of Schedule 2; and

                     (b)  the timing conditions; and

                     (c)  such other conditions as are imposed under section 92J.

92J  ACMA may vary conditions or periods, or impose new conditions

             (1)  The ACMA may, by notice in writing given to a temporary community broadcasting licensee:

                     (a)  vary or revoke a condition of the licence (including a timing condition); or

                     (b)  impose an additional condition on the licence; or

                     (c)  vary the licence period.

             (2)  Without limiting subsection (1), the ACMA may impose an additional condition on a licence:

                     (a)  requiring the licensee to comply with a code of practice that is applicable to the licensee; or

                     (b)  designed to ensure that a breach of a condition by the licensee does not recur.

             (3)  An additional condition of a licence must be relevant to community broadcasting services.

             (4)  If the ACMA proposes to vary or revoke a condition, impose an additional condition or vary the licence period, the ACMA is to give to the licensee:

                     (a)  written notice of its intention; and

                     (b)  a reasonable opportunity to make representations to the ACMA in relation to the proposed action.

             (5)  This section does not allow the ACMA:

                     (a)  to vary or revoke a condition set out in Part 5 of Schedule 2; or

                     (b)  to vary or revoke a timing condition so that there are no times in which the licence allows community broadcasting services to be provided; or

                     (c)  to vary the licence period so that the period is longer than 12 months.

             (6)  If the ACMA varies or revokes a condition (other than a timing condition), imposes an additional condition or varies the licence period, the ACMA is to publish the fact of the variation, revocation or additional condition in the Gazette.

             (7)  Action taken under subsection (1) must not be inconsistent with:

                     (a)  determinations and clarifications under section 19; or

                     (b)  conditions set out in Part 5 (other than paragraph 9(1)(h)) of Schedule 2.

92K  Duration of temporary community broadcasting licences

                   Subject to section 92L and Part 10, a temporary community broadcasting licence remains in force for the licence period.

92L  Surrender of temporary community broadcasting licences

                   A temporary community broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence.


 

Part 7Subscription television broadcasting services

Division 1Allocation of subscription television broadcasting licences

95  When subscription television broadcasting licence must not be allocated

             (1)  A subscription television broadcasting licence is not to be allocated to an applicant if:

                     (a)  the applicant is not a company that is formed in Australia or in an external Territory and has a share capital; or

                     (b)  the ACMA decides that subsection 98(2) applies to the applicant.

             (2)  Paragraph (1)(b) does not require the ACMA to consider the application of subsection 98(2) in relation to an applicant before a subscription television broadcasting licence is allocated to the applicant.

96  Allocation of other subscription television broadcasting licences

             (1)  The ACMA may allocate to a person, on application in writing by the person, a subscription television broadcasting licence.

             (2)  Licences under subsection (1) are to be allocated on the basis of one licence per service.

             (4)  Applications must:

                     (a)  be in accordance with a form approved in writing by the ACMA; and

                     (b)  be accompanied by the application fee determined by the ACMA.

             (5)  The ACMA must not allocate a subscription television broadcasting licence under this section if the Australian Competition and Consumer Commission has reported, within 30 days after being requested for a report under section 97, that, in the opinion of the Australian Competition and Consumer Commission, the allocation of the licence to the applicant:

                     (a)  would constitute a contravention of section 50 of the Trade Practices Act 1974 if the allocation of the licence were the acquisition by the applicant of an asset of a body corporate; and

                     (b)  would not be authorised under section 88 of that Act if the applicant had applied for such an authorisation.

             (6)  If a licence is allocated under this section, the ACMA must publish in the Gazette the name of the successful applicant.

97  Requests to Australian Competition and Consumer Commission

             (1)  Before a subscription television broadcasting licence is allocated to a person under section 96, the ACMA must request the Australian Competition and Consumer Commission to provide a report under this section.

             (2)  The report is to advise whether, in the opinion of the Australian Competition and Consumer Commission, the allocation of the licence to the applicant:

                     (a)  would constitute a contravention of section 50 of the Trade Practices Act 1974 if the allocation of the licence were the acquisition by the applicant of an asset of a body corporate; and

                     (b)  would not be authorised under section 88 of that Act if the applicant had applied for such an authorisation.

             (3)  For the purposes of the consideration of a request by the Australian Competition and Consumer Commission, section 155 of the Trade Practices Act 1974 applies as if the allocation of a licence under this Part were a matter referred to in subsection (1) of that section.

98  Suitability for allocation of licence

             (1)  For the purposes of this Part, a company is a suitable subscription television broadcasting licensee or a suitable applicant for a subscription television broadcasting licence if the ACMA has not decided that subsection (2) applies to the person.

             (2)  The ACMA may, if it is satisfied that allocating a subscription television broadcasting licence to a particular company or allowing a particular company to continue to hold a subscription television broadcasting licence would lead to a significant risk of:

                     (a)  an offence against this Act or the regulations being committed; or

                    (aa)  a breach of a civil penalty provision occurring; or

                     (b)  a breach of the conditions of the licence occurring;

decide that this subsection applies to the company.

             (3)  In deciding whether such a risk exists, the ACMA is to take into account:

                     (a)  the business record of the company; and

                     (b)  the company’s record in situations requiring trust and candour; and

                     (c)  the business record of each person who is, or would be, if a subscription television broadcasting licence were allocated to the applicant, in a position to exercise control of the licence; and

                     (d)  the record in situations requiring trust and candour of each such person; and

                     (e)  whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and

                      (f)  whether a civil penalty order has been made against:

                              (i)  the company; or

                             (ii)  a person referred to in paragraph (c) or (d).

             (4)  This section does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).

98D  Compensation

             (1)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

             (2)  If the operation of this Act would result in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.

             (3)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.


 

Division 2Conditions of subscription television broadcasting licence

99  Conditions applicable to subscription television broadcasting licence

             (1)  The conditions set out in Part 6 of Schedule 2 apply to the provision by a subscription television broadcasting licensee of a subscription television broadcasting service.

             (2)  The ACMA may, by notice in writing given to a subscription television broadcasting licensee, specify additional conditions to which the licence is subject or vary or revoke a condition imposed under this subsection.

             (4)  If the ACMA proposes to impose a new condition or to vary or revoke a condition, the ACMA must:

                     (a)  give to the licensee written notice of its intention; and

                     (b)  give to the licensee a reasonable opportunity to make representations to the ACMA in relation to the proposed action; and

                     (c)  publish the proposed changes in the Gazette.

             (5)  This section does not allow the ACMA to vary or revoke a condition set out in Part 6 of Schedule 2.

             (6)  If the ACMA varies or revokes a condition or imposes a new condition, the ACMA must publish the variation, the fact of the revocation or the new condition, as the case may be, in the Gazette.

             (7)  Action taken under this section must not be inconsistent with:

                     (a)  determinations and clarifications under section 19; or

                     (b)  conditions set out in Part 6 of Schedule 2.

100  Matters to which conditions may relate

             (1)  Conditions of a subscription television broadcasting licence must be relevant to subscription television broadcasting services.

             (2)  Without limiting the range of conditions that may be imposed, the ACMA may impose a condition:

                     (a)  requiring a licensee to comply with a code of practice that is applicable to the licensee; or

                     (b)  designed to ensure that a breach of a condition by a subscription television broadcasting licensee does not recur; or

                     (c)  designed to ensure compliance with the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995.

             (3)  The ACMA must impose conditions on satellite subscription television broadcasting licences:

                     (a)  designed to ensure that the domestic reception equipment used by each satellite subscription television broadcasting licensee is accessible by other satellite broadcasting services; and

                     (b)  designed to ensure that each satellite subscription television broadcasting licensee that has a subscriber management system provides access to that system to other satellite subscription television broadcasting licensees at a fair price.

             (4)  The Minister may direct the ACMA to impose a condition under this section designed to ensure that subscription television broadcasting licensees adequately involve Australian industry in the provision of services under those licences.

          (4A)  Conditions under subsection (4) may be different for different classes of licensees.

             (5)  The ACMA must impose a condition on all subscription television broadcasting licences requiring each licensee to make available, as an option, domestic reception equipment on a rental basis.

             (6)  The ACMA must impose a condition on all non‑satellite subscription television broadcasting licences requiring that, if a licensee rents domestic reception equipment to a consumer, the rental agreement must allow the consumer to terminate the agreement on giving one month’s written notice to the licensee.


 

Division 2AEligible drama expenditure

Subdivision AIntroduction

103A  Simplified outline

                   The following is a simplified outline of this Division:

•      This Division requires subscription television broadcasting licensees to ensure the maintenance of minimum levels of expenditure on new eligible drama programs.

•      An eligible drama program is a drama program that is an Australian program, an Australian/New Zealand program, a New Zealand program or an Australian official co‑production.

     If a licensee provides a subscription TV drama service, expenditure on new eligible drama programs for each financial year must be at least 10% of total program expenditure.

•      If a channel provider supplies a channel that is televised on a subscription TV drama service, the 10% expenditure requirement is calculated by reference to the expenditure incurred by the channel provider.

•      If a channel provider supplies a channel that is televised on a subscription TV drama service and the 10% expenditure requirement is not met for a particular financial year, the shortfall will have to be made up in the next financial year.

•      If expenditure on new eligible drama programs for a financial year exceeds the 10% expenditure requirement, the excess expenditure may be carried forward to the next financial year.

•      Licensees and channel providers are required to lodge annual returns about their program expenditure.

103B  Definitions

                   In this Division:

acquiring, in relation to a drama program, includes acquiring rights in relation to the program.

Australian Content Standard means:

                     (a)  the Broadcasting Services (Australian Content) Standard 2005 as in force from time to time; or

                     (b)  if the standard mentioned in paragraph (a) is not in force, but there is in force another standard that is a successor (whether immediate or not) to the standard mentioned in paragraph (a)—that other standard as in force from time to time.

carry‑forward eligible drama expenditure provision means:

                     (a)  subsection 103NA(2); or

                     (b)  subsection 103RA(2); or

                     (c)  subsection 103TA(2); or

                     (d)  subsection 103UA(2); or

                     (e)  subsection 103XA(2); or

                      (f)  subsection 103ZAA(2).

channel means a continuous stream of programs.

channel provider has the meaning given by section 103C.

compliance certificate means a certificate under section 103ZE.

designated script development expenditure, in relation to a program, means expenditure incurred in developing the screenplay or a script outline for the program, where:

                     (a)  the program is a drama program; and

                     (b)  the expenditure is incurred by a person (the first person) under a contract with another person who is not a director, officer or employee of the first person; and

                     (c)  the writer, or each of the writers, involved in developing the screenplay or script outline is:

                              (i)  a citizen or permanent resident of Australia; or

                             (ii)  a citizen or permanent resident of New Zealand; and

                     (d)  the producer of the program is:

                              (i)  a citizen or permanent resident of Australia; or

                             (ii)  a citizen or permanent resident of New Zealand; and

                     (e)  the expenditure is paid before the commencement of principal photography for the program; and

                      (f)  the expenditure is paid on or after 1 January 2006.

For the purposes of paragraph (d), producer has the same meaning as in the Australian Content Standard.

drama program means:

                     (a)  a program that has a fully scripted screenplay in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure; or

                     (b)  a program that has:

                              (i)  a partially scripted screenplay in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure; and

                             (ii)  actors delivering improvised dialogue that is based on a script outline or outlines developed by a writer or writers; or

                     (c)  a program that has actors delivering improvised dialogue that is based on a script outline or outlines:

                              (i)  developed by a writer or writers; and

                             (ii)  in which the dramatic elements of character, theme and plot are introduced and developed to form a narrative structure;

and includes:

                     (d)  a fully scripted sketch comedy program; and

                     (e)  an animated drama; and

                      (f)  a dramatised documentary;

but does not include:

                     (g)  a program that involves the incidental use of actors; or

                     (h)  advertising or sponsorship matter (whether or not of a commercial kind).

eligible drama program means:

                     (a)  a drama program that is an Australian program (within the meaning of the Australian Content Standard); or

                     (b)  a drama program that is an Australian/New Zealand program (within the meaning of the Australian Content Standard); or

                     (c)  a drama program that is a New Zealand program (within the meaning of the Australian Content Standard); or

                     (d)  a drama program that is an Australian official co‑production (within the meaning of the Australian Content Standard).

expenditure, in relation to a program or program material, means:

                     (a)  expenditure incurred in acquiring the program or program material; or

                     (b)  expenditure incurred in producing the program or program material; or

                     (c)  pre‑production expenditure incurred in relation to the program or program material; or

                     (d)  expenditure incurred by way of the making of an investment in the program or program material;

and includes nil expenditure.

Note:          Section 103H sets out a special rule for non‑designated pre‑production expenditure.

financial year means:

                     (a)  the financial year beginning on 1 July 1999; or

                     (b)  a later financial year.

incidental matter means:

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

                     (b)  a program promotion; or

                     (c)  an announcement; or

                     (d)  a hosting; or

                     (e)  any other interstitial program.

licensee means a subscription television broadcasting licensee.

new, in relation to an eligible drama program, has the meaning given by section 103K.

non‑designated pre‑production expenditure means pre‑production expenditure other than designated script development expenditure.

part‑channel provider has the meaning given by section 103D.

part‑pass‑through provider has the meaning given by section 103F.

pass‑through provider has the meaning given by section 103E.

pre‑production expenditure, in relation to a program or program material, means:

                     (a)  expenditure incurred in developing the screenplay or a script outline for the program or program material; or

                     (b)  any other expenditure incurred by way of pre‑production costs for the program or program material.

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

registered auditor means a person registered as an auditor, or taken to be registered as an auditor, under Part 9.2 of the Corporations Act 2001.

subscription TV drama service means a subscription television broadcasting service devoted predominantly to drama programs.

103C  Channel providers

                   For the purposes of this Division, a channel provider, in relation to a subscription TV drama service provided by a licensee, is a person who:

                     (a)  packages a channel (which may include programs produced by the person); and

                     (b)  supplies the licensee with the channel; and

                     (c)  carries on a business in Australia, by means of a principal office or of a branch, that involves the supply of the channel;

where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is televised by the licensee on the subscription TV drama service.

103D  Part‑channel providers

                   For the purposes of this Division, a part‑channel provider, in relation to a subscription TV drama service provided by a licensee, is a person who:

                     (a)  assembles a package of programs (which may include programs produced by the person); and

                     (b)  supplies the licensee with the package; and

                     (c)  carries on a business in Australia, by means of a principal office or of a branch, that involves the supply of the package;

where:

                     (d)  the package consists predominantly of drama programs; and

                     (e)  the package constitutes a significant proportion of the program material that is televised by the licensee on the subscription TV drama service; and

                      (f)  there is neither:

                              (i)  a channel provider; nor

                             (ii)  a pass‑through provider;

                            in relation to the subscription TV drama service.

103E  Pass‑through providers

                   For the purposes of this Division, a pass‑through provider, in relation to a subscription TV drama service provided by a licensee, is a person who:

                     (a)  packages a channel (which may include programs produced by the person); and

                     (b)  supplies the licensee with the channel; and

                     (c)  does not carry on a business in Australia, by means of a principal office or of a branch, that involves the supply of the channel;

where, apart from any breaks for the purposes of the transmission of incidental matter, the channel is televised by the licensee on the subscription TV drama service.

103F  Part‑pass‑through providers

                   For the purposes of this Division, a part‑pass‑through provider, in relation to a subscription TV drama service provided by a licensee, is a person who:

                     (a)  assembles a package of programs (which may include programs produced by the person); and

                     (b)  supplies the licensee with the package; and

                     (c)  does not carry on a business in Australia, by means of a principal office or of a branch, that involves the supply of the package;

where:

                     (d)  the package consists predominantly of drama programs; and

                     (e)  the package constitutes a significant proportion of the program material that is televised by the licensee on the subscription TV drama service; and

                      (f)  there is neither:

                              (i)  a channel provider; nor

                             (ii)  a pass‑through provider;

                            in relation to the subscription TV drama service.

103G  Supply of channel or package

                   For the purposes of this Division, a person is taken to have supplied a channel, or a package of programs, to a licensee if the channel or package, as the case may be, is supplied to the licensee by the person:

                     (a)  directly; or

                     (b)  indirectly through one or more interposed persons.

103H  Non‑designated pre‑production expenditure not to be counted unless principal photography has commenced

                   For the purposes of this Division, non‑designated pre‑production expenditure is not to be counted unless principal photography has commenced for the program or program material concerned.

103J  Cash‑based accounting—when expenditure is incurred

             (1)  For the purposes of this Division:

                     (a)  if the whole of an item of expenditure (other than non‑designated pre‑production expenditure) is paid at a particular time—the expenditure is incurred when the expenditure is paid; and

                     (b)  if different parts of an item of expenditure (other than non‑designated pre‑production expenditure) are paid at different times—each part is incurred when the part is paid.

             (2)  For the purposes of this Division:

                     (a)  if the whole of an item of non‑designated pre‑production expenditure is paid at a particular time—the expenditure is incurred at whichever is the later of the following times:

                              (i)  the time when the expenditure is paid;

                             (ii)  the commencement of principal photography for the program or program material concerned; and

                     (b)  if different parts of an item of non‑designated pre‑production expenditure are paid at different times—each part is incurred at whichever is the later of the following times:

                              (i)  the time when the part is paid;

                             (ii)  the commencement of principal photography for the program or program material concerned.

103JA  When designated script development expenditure is incurred in relation to an eligible drama program etc.

             (1)  If:

                     (a)  during a financial year, a person incurs designated script development expenditure in relation to a drama program; and

                     (b)  principal photography did not commence for the program before the end of the financial year;

this Division has effect, in relation to that expenditure, as if the drama program were an eligible drama program.

Recoupment of expenditure incurred by a person—program is not produced as an eligible drama program

             (2)  If:

                     (a)  during a financial year (the first financial year), a person incurred designated script development expenditure in relation to a drama program; and

                     (b)  principal photography did not commence for the program before the end of the first financial year; and

                     (c)  principal photography commences for the program during a later financial year; and

                     (d)  when principal photography commences for the program, the drama program is not an eligible drama program; and

                     (e)  the person nominated the whole or a part of the designated script development expenditure for the purposes of the application of a particular provision of this Division in relation to a subscription TV drama service;

then, for the purposes of the application of this Division to the subscription TV drama service, the total expenditure incurred by the person during the later financial year on new eligible drama programs is taken to be reduced (but not below zero) by the amount of the whole or the part, as the case may be, of the expenditure referred to in paragraph (e).

Recoupment of expenditure incurred by a pass‑through provider—program is not produced as an eligible drama program

             (3)  If:

                     (a)  during a financial year (the first financial year), a person incurred designated script development expenditure in relation to a drama program; and

                     (b)  the person is a pass‑through provider in relation to a subscription TV drama service because the person supplies a channel; and

                     (c)  principal photography did not commence for the program before the end of the first financial year; and

                     (d)  principal photography commences for the program during a later financial year; and

                     (e)  when principal photography commences for the program, the drama program is not an eligible drama program; and

                      (f)  the licensee who provided the subscription TV drama service nominated the whole or a part of the designated script development expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;

then, for the purposes of the application of this Division to the subscription TV drama service, the total expenditure incurred by the pass‑through provider during the later financial year on new eligible drama programs is taken to be reduced (but not below zero) by the amount of the whole or the part, as the case may be, of the expenditure referred to in paragraph (f).

Recoupment of expenditure incurred by a part‑pass‑through provider—program is not produced as an eligible drama program

             (4)  If:

                     (a)  during a financial year (the first financial year), a person incurred designated script development expenditure in relation to a drama program; and

                     (b)  the person is a part‑pass‑through provider in relation to a subscription TV drama service because the person supplies a package of programs; and

                     (c)  principal photography did not commence for the program before the end of the first financial year; and

                     (d)  principal photography commences for the program during a later financial year; and

                     (e)  when principal photography commences for the program, the drama program is not an eligible drama program; and

                      (f)  the licensee who provided the subscription TV drama service nominated the whole or a part of the designated script development expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;

then, for the purposes of the application of this Division to the subscription TV drama service, the total expenditure incurred by the part‑pass‑through provider during the later financial year on new eligible drama programs is taken to be reduced (but not below zero) by the amount of the whole or the part, as the case may be, of the expenditure referred to in paragraph (f).

103K  When expenditure incurred on a new eligible drama program

             (1)  For the purposes of this Division, if a person incurs expenditure on an eligible drama program, the eligible drama program is new if, and only if, the whole or a substantial part of the program has not been televised in Australia or New Zealand on a broadcasting service at any time before the expenditure is incurred.

             (2)  For the purposes of subsection (1), it is to be assumed that the definition of broadcasting service in subsection 6(1) extended to matters and things in New Zealand.

103L  ACMA may make determinations about what constitutes program expenditure

Program material

             (1)  The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be expenditure incurred on program material (other than eligible drama programs).

             (2)  The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be expenditure incurred on program material (other than eligible drama programs).

Eligible drama programs

             (3)  The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be expenditure incurred on an eligible drama program.

             (4)  The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be expenditure incurred on an eligible drama program.

Designated script development expenditure

          (4A)  The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken to be designated script development expenditure.

          (4B)  The ACMA may make a written determination providing that, for the purposes of this Division, specified expenditure is taken not to be designated script development expenditure.

Determination has effect

             (5)  A determination under this section has effect accordingly.

Determination to be of a legislative character

             (6)  A determination under this section is to be an instrument of a legislative character.

Legislative instrument

             (7)  A determination under this section is a legislative instrument for the purpose of the Legislative Instruments Act 2003.

Note:          For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

103M  Expenditure to be nominated only once in meeting licence conditions

Channel provider and part‑channel provider

             (1)  If:

                     (a)  either:

                              (i)  a person is a channel provider in relation to a subscription TV drama service provided by a licensee because the person supplies a channel; or

                             (ii)  a person is a part‑channel provider in relation to a subscription TV drama service provided by a licensee because the person supplies a package of programs; and

                     (b)  the person nominates the whole or a part of particular expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;

the whole or part, as the case may be, of the expenditure must not be nominated by the person for the purposes of:

                     (c)  the application of any other provision of this Division (other than a carry‑forward eligible drama expenditure provision) in relation to that service; or

                     (d)  the application of any provision of this Division in relation to another subscription TV drama service provided by the licensee; or

                     (e)  the application of any provision of this Division in relation to another subscription TV drama service provided by another licensee.

             (2)  However, the rule in paragraph (1)(e):

                     (a)  does not apply in relation to a person who is a channel provider if:

                              (i)  the person supplies the same or a substantially similar channel to the other licensee; and

                             (ii)  apart from any breaks for the purposes of the transmission of incidental matter, the same or a substantially similar channel supplied by the person is televised by the other licensee on the other subscription TV drama service; and

                     (b)  does not apply in relation to a person who is a part‑channel provider if:

                              (i)  the person supplies the same or a substantially similar package of programs to the other licensee; and

                             (ii)  apart from any breaks for the purposes of the transmission of incidental matter, the same or a substantially similar package of programs supplied by the person is televised by the other licensee on the other subscription TV drama service.

Licensee

             (3)  If:

                     (a)  a licensee provides a subscription TV drama service; and

                     (b)  the licensee nominates the whole or a part of particular expenditure for the purposes of the application of a particular provision of this Division in relation to the subscription TV drama service;

the whole or part, as the case may be, of the expenditure must not be nominated by the licensee for the purposes of:

                     (c)  the application of any other provision of this Division (other than a carry‑forward eligible drama expenditure provision) in relation to that service; or

                     (d)  the application of any provision of this Division in relation to another subscription TV drama service provided by the licensee.

Subdivision BChannel provider supplies channel

103N  10% minimum eligible drama expenditure—channel provider supplies channel

             (1)  If:

                     (a)  a licensee provides a subscription TV drama service; and

                     (b)  a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel;

it is a condition of the licence that, for each financial year of operation, the sum of:

                     (c)  the channel provider’s new eligible drama expenditure in relation to the subscription TV drama service; and

                     (d)  the channel provider’s carry‑forward eligible drama expenditure in relation to the subscription TV drama service;

equals or exceeds 10% of the channel provider’s total program expenditure in relation to the channel.

             (2)  In this section:

channel provider’s carry‑forward eligible drama expenditure, in relation to the subscription TV drama service, means the channel provider’s carry‑forward eligible drama expenditure (within the meaning of subsection 103NA(2)) for the financial year.

channel provider’s new eligible drama expenditure, in relation to the subscription TV drama service, means so much of the total expenditure incurred by the channel provider during the financial year on new eligible drama programs as the channel provider nominates for the purposes of the application of subsection (1) in relation to the subscription TV drama service.

channel provider’s total program expenditure, in relation to the channel, means the total expenditure incurred by the channel provider during the financial year on the program material that is included, or available to be included, in the channel.

          (2A)  The channel provider is not entitled to nominate, under the definition of channel provider’s new eligible drama expenditure in subsection (2), so much of the designated script development expenditure incurred by the channel provider during the financial year as exceeds 10% of the channel provider’s new eligible drama expenditure in relation to the subscription TV drama service.

             (3)  Division 3 of Part 10 (which deals with breaches of conditions) does not apply to the condition set out in subsection (1).

Note:          If the sum of the channel provider’s new eligible drama expenditure and the channel provider’s carry‑forward eligible drama expenditure is less than 10% of the channel provider’s total program expenditure, the shortfall will have to be made up in the next financial year—see sections 103P and 103Q.

103NA  Carry‑forward eligible drama expenditure

             (1)  This section applies if:

                     (a)  a licensee provides a subscription TV drama service; and

                     (b)  a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel; and

                     (c)  the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the subscription TV drama service for a financial year exceeds 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the channel for the financial year.

             (2)  For the purposes of section 103N, the channel provider’s carry‑forward eligible drama expenditure in relation to the subscription TV drama service for the next following financial year is so much of the excess expenditure as the channel provider nominates for the purposes of the application of this subsection in relation to the subscription TV drama service.

             (3)  Paragraph (1)(c) does not apply to so much of the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the subscription TV drama service as was incurred before 1 January 2006.

103P  Shortfall of eligible drama expenditure—channel provider supplies channel exclusively to licensee

             (1)  This section applies if:

                     (a)  a licensee (the first licensee) provides a subscription TV drama service (the first subscription TV drama service); and

                     (b)  a person is a channel provider in relation to the subscription TV drama service because the person supplies a channel (the first channel); and

                     (c)  it is not the case that the channel provider supplies the same or a substantially similar channel to another licensee in circumstances where, apart from any breaks for the purposes of the transmission of incidental matter, the same or substantially similar channel supplied by the channel provider is televised by the other licensee on another subscription TV drama service; and

                     (d)  the sum of:

                              (i)  the channel provider’s new eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for a particular financial year (the shortfall year); and

                             (ii)  the channel provider’s carry‑forward eligible drama expenditure (within the meaning of section 103N) in relation to the first subscription TV drama service for the shortfall year;

                            is less than 10% of the channel provider’s total program expenditure (within the meaning of section 103N) in relation to the first channel for the shortfall year.

Shortfall amount to be made up next financial year

             (2)  It is a condition of the first licensee’s licence that, for the next financial year (the make‑up year):

                     (a)  the channel provider’s make‑up expenditure is equal to the shortfall amount; or

                     (b)  the first licensee’s make‑up expenditure is equal to the shortfall amount; or

                     (c)  the sum of:

                              (i)  the channel provider’s make‑up expenditure; and

                             (ii)  the first licensee’s make‑up expenditure;

                            is equal to the shortfall amount.

Definitions

             (3)  In this section:

channel provider’s make‑up expenditure means so much of the total expenditure incurred by the channel provider during the make‑up year on new eligible drama programs as the channel provider nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.

first licensee’s make‑up expenditure means so much of the total expenditure incurred by the first licensee during the make‑up year on new eligible drama programs not included, or available to be included, in the first channel as the first licensee nominates for the purposes of the application of subsection (2) in relation to the first subscription TV drama service.

shortfall amount means the amount by which the sum of: