Federal Register of Legislation - Australian Government

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Broadcasting Services Act 1992

Authoritative Version
  • - C2010C00506
  • In force - Superseded Version
  • View Series
Act No. 110 of 1992 as amended, taking into account amendments up to Act No. 103 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
General Comments: This compilation is affected by a retrospective amendment, please see Statute Law Revision Act 2011 [Act No. 5 of 2011], for details.
Registered 21 Jul 2010
Start Date 30 Jun 2010
End Date 31 Dec 2010
Table of contents.

 

Broadcasting Services Act 1992

Act No. 110 of 1992 as amended

This compilation was prepared on 20 July 2010
taking into account amendments up to Act No. 103 of 2010

Volume 2 includes:     Table of Contents
                                    Schedules 4 – 7
                                    Note 1
                                    Table of Acts
                                    Act Notes
                                    Table of Amendments
                                    Notes 2 and 3
                                    Table A

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

 

 

 


Contents

Schedule 4—Digital television broadcasting                                                          1

Part 1—Introduction                                                                                                            1

1............ Simplified outline................................................................................ 1

2............ Definitions.......................................................................................... 2

3............ Analog mode....................................................................................... 7

4............ Digital mode........................................................................................ 7

4A......... HDTV digital mode............................................................................ 7

4B......... SDTV digital mode............................................................................. 7

4C......... Simulcast‑equivalent period for a licence area..................................... 7

4D......... Simulcast‑equivalent period for a coverage area.................................. 8

5............ Remote licence area............................................................................. 8

5A......... SDTV multi‑channelled commercial television broadcasting service.. 8

5B......... HDTV multi‑channelled commercial television broadcasting service.. 9

5C......... SDTV multi‑channelled national television broadcasting service........ 9

5D......... HDTV multi‑channelled national television broadcasting service..... 10

5E.......... Designated HDTV multi‑channelled national television broadcasting service          10

5F.......... Local market areas and digital‑only local market areas...................... 11

5H......... Reports on transmission blackspots.................................................. 12

5J.......... Overlapping coverage areas.............................................................. 13

Part 2—Commercial television                                                                                     14

6............ Commercial television conversion scheme........................................ 14

6A......... Determination of simulcast period—metropolitan and regional licence areas           27

6B......... Determination of simulcast period—remote licence areas................. 29

6C......... Digital conversion of re‑transmission facilities................................. 29

7............ Scheme may confer administrative powers on the ACMA............... 31

7A......... Scheme may confer power to make digital channel plans.................. 31

7B......... Revocation of multi‑channelling election........................................... 32

8............ Transmitter licences........................................................................... 33

9............ Submission of implementation plans to the ACMA.......................... 36

10.......... Amendment of certain plans and guidelines...................................... 36

11.......... Reviews and reports.......................................................................... 37

12.......... Ancillary or incidental provisions..................................................... 37

13.......... ACMA to have regard to datacasting allocation power..................... 37

14.......... ACMA to have regard to special circumstances that apply in remote licence areas  37

15.......... Minister may give directions to the ACMA...................................... 37

16.......... Variation of scheme.......................................................................... 38

17.......... Scheme to be a disallowable instrument............................................ 38

18.......... Processes to be public....................................................................... 38

Part 3—ABC/SBS television                                                                                          39

19.......... National television conversion scheme.............................................. 39

20.......... National broadcasters to give implementation plans to the Minister.. 48

21.......... Compliance with implementation plans............................................. 50

22.......... Scheme may confer administrative powers on the ACMA............... 50

22A....... Scheme may confer power to make digital channel plans.................. 50

23.......... Transmitter licences........................................................................... 51

24.......... Amendment of certain plans and guidelines...................................... 54

25.......... Reviews and reports.......................................................................... 54

26.......... Ancillary or incidental provisions..................................................... 54

27.......... ACMA to have regard to datacasting allocation power..................... 54

28.......... ACMA to have regard to special circumstances that apply in remote coverage areas               55

29.......... Minister may give directions to the ACMA...................................... 55

30.......... Variation of scheme.......................................................................... 55

31.......... Scheme to be a disallowable instrument............................................ 55

32.......... Scheme does not take effect until approved by the Minister.............. 55

33.......... Processes to be public....................................................................... 56

34.......... Compliance with scheme................................................................... 56

35.......... Simulcasting requirements................................................................ 56

35A....... Certain transmissions to be disregarded............................................ 56

35AA.... National broadcasters must provide HDTV multi‑channelled national television broadcasting service during simulcast period etc........................................................................................... 57

36.......... Digital transmitter not to be used to provide a subscription television broadcasting service etc.               57

Part 4—Standards and HDTV quotas                                                                    58

Division 2—HDTV quotas and standards                                                       58

37DAA. This Division does not apply in relation to section 38C licences....... 58

37DA.... This Division does not apply in relation to licences allocated under subsection 40(1)              58

37E........ Non‑remote areas—HDTV quotas for commercial television broadcasting licensees              58

37F........ Non‑remote areas—HDTV quotas for national broadcasters............ 60

37G....... Remote areas—HDTV quotas for commercial television broadcasting licensees     61

37H....... Remote areas—HDTV quotas for national broadcasters................... 62

37K....... Compliance by national broadcasters................................................ 62

37L........ High‑definition television programs.................................................. 63

37M...... Prime viewing hours......................................................................... 65

Division 3—Captioning                                                                                              66

38.......... Captioning [see Note 2].................................................................... 66

Division 5—Miscellaneous                                                                                       73

41.......... Standards may incorporate other instruments.................................... 73

Part 4A—Restrictions on televising anti‑siphoning events                          74

Division 1—Commercial television broadcasting services                     74

41A....... SDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events during the simulcast period if there is a core service etc.................... 74

41B....... SDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events during the simulcast period if there is a primary service etc.............. 75

41C....... HDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events during the simulcast period if there is a core service etc.................... 77

41D....... HDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events during the simulcast period if there is a primary service etc.............. 78

41E........ SDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events after the end of the simulcast period etc............................................. 79

41F........ HDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events after the end of the simulcast period etc............................................. 81

41FA..... SDTV multi‑channelled commercial television broadcasting service provided under a section 38C licence—restrictions on televising anti‑siphoning events................................................... 82

41FB..... HDTV multi‑channelled commercial television broadcasting service provided under a section 38C licence—restrictions on televising anti‑siphoning events................................................... 83

41G....... Primary commercial television broadcasting service......................... 85

Division 2—National television broadcasting services                             87

41H....... SDTV multi‑channelled national television broadcasting service—restrictions on televising anti‑siphoning events during the simulcast period etc..................................................................... 87

41J........ HDTV multi‑channelled national television broadcasting service—restrictions on televising anti‑siphoning events during the simulcast period etc..................................................................... 88

41K....... SDTV multi‑channelled national television broadcasting service—restrictions on televising anti‑siphoning events after the end of the simulcast period etc..................................................... 89

41L........ HDTV multi‑channelled national television broadcasting service—restrictions on televising anti‑siphoning events after the end of the simulcast period etc..................................................... 91

41LA..... SDTV multi‑channelled national television broadcasting service provided with the use of a satellite—restrictions on televising anti‑siphoning events........................................................ 92

41LB..... HDTV multi‑channelled national television broadcasting service provided with the use of a satellite—restrictions on televising anti‑siphoning events........................................................ 93

41M...... Primary national television broadcasting service............................... 94

41N....... Primary satellite national television broadcasting service.................. 95

Part 5—Transmitter access regime                                                                           96

42.......... Simplified outline.............................................................................. 96

43.......... Definitions........................................................................................ 96

43A....... Designated associated facilities......................................................... 97

44.......... Extended meaning of access.............................................................. 97

45.......... Access to broadcasting transmission towers..................................... 98

45A....... Access to designated associated facilities.......................................... 99

46.......... Access to sites of broadcasting transmission towers....................... 101

47.......... Terms and conditions of access....................................................... 103

48.......... Code relating to access.................................................................... 105

49.......... Arbitration—acquisition of property............................................... 105

50.......... Relationship between this Part and the National Transmission Network Sale Act 1998           106

Part 6—Collection of datacasting charge                                                            107

51.......... Collection of datacasting charge...................................................... 107

52.......... Cancellation of certain exemptions from datacasting charge............ 108

Part 7—Injunctions                                                                                                           109

54.......... Injunctions...................................................................................... 109

55.......... Interim injunctions.......................................................................... 110

56.......... Discharge etc. of injunctions........................................................... 110

57.......... Certain limits on granting injunctions not to apply.......................... 110

58.......... Other powers of the court unaffected.............................................. 111

Part 8—Reviews                                                                                                                  112

60B....... Review before 1 January 2006........................................................ 112

60C....... Review of content and captioning rules applicable to multi‑channelled commercial television broadcasting services........................................................................................................ 112

60D....... Review of content and captioning rules applicable to multi‑channelled television broadcasting services  113

Part 10—Review of decisions                                                                                      115

62.......... Review by the AAT........................................................................ 115

63.......... Notification of decisions to include notification of reasons and appeal rights           116

Part 11—Regional equalisation plan                                                                      117

64.......... Regional equalisation plan............................................................... 117

Schedule 5—Online services                                                                                        119

Part 1—Introduction                                                                                                        119

2............ Simplified outline............................................................................ 119

3............ Definitions...................................................................................... 120

5............ Internet content that consists of a film............................................. 122

7............ Extended meaning of use................................................................ 122

Part 2—Internet service providers                                                                          123

8............ Internet service providers................................................................ 123

9............ Supply to the public........................................................................ 123

Part 4—Complaints to, and investigations by, the ACMA                       125

Division 1—Making of complaints to the ACMA                                      125

23.......... Complaints about breaches of online provider rules etc.................. 125

24.......... Form of complaint........................................................................... 125

25.......... Residency etc. of complainant......................................................... 125

Division 2—Investigations by the ACMA                                                      126

26.......... Investigation of complaints by the ACMA..................................... 126

27.......... ACMA may investigate matters on its own initiative...................... 126

28.......... Conduct of investigations................................................................ 126

29.......... Protection from civil proceedings.................................................... 127

Division 4—Action to be taken in relation to a complaint about prohibited content hosted outside Australia                                                                                                128

40.......... Action to be taken in relation to a complaint about prohibited content hosted outside Australia               128

41.......... Deferral of action in order to avoid prejudicing a criminal investigation.. 130

42.......... Withdrawal of notification of content—reclassification of internet content               130

43.......... Withdrawal of notification of content—reclassification of internet content that consists of a film or a computer game........................................................................................................ 131

44.......... Revocation of standard access‑prevention notice—reclassification of internet content             132

45.......... Revocation of standard access‑prevention notice—reclassification of internet content that consists of a film or a computer game................................................................................................ 132

46.......... Anti‑avoidance—notified internet content....................................... 133

47.......... Anti‑avoidance—special access‑prevention notice.......................... 134

48.......... Compliance with access‑prevention notices.................................... 135

49.......... Notification of internet content........................................................ 135

50.......... Application of notifications under this Division.............................. 136

51.......... ACMA may be taken to have issued access‑prevention notices...... 136

Part 5—Industry codes and industry standards                                             137

Division 1—Simplified outline                                                                              137

52.......... Simplified outline............................................................................ 137

Division 2—Interpretation                                                                                     138

53.......... Industry codes................................................................................. 138

54.......... Industry standards........................................................................... 138

55.......... Internet activity................................................................................ 138

56.......... Section of the internet industry........................................................ 138

57.......... Participants in a section of the internet industry.............................. 138

58.......... Designated body............................................................................. 138

Division 3—General principles relating to industry codes and industry standards        139

59.......... Statement of regulatory policy......................................................... 139

60.......... Matters that must be dealt with by industry codes and industry standards               139

61.......... Industry codes and industry standards not to deal with certain matters 143

Division 4—Industry codes                                                                                    144

62.......... Registration of industry codes......................................................... 144

63.......... ACMA may request codes.............................................................. 145

64.......... Publication of notice where no body or association represents a section of the internet industry             146

65.......... Replacement of industry codes........................................................ 147

66.......... Compliance with industry codes..................................................... 147

67.......... Formal warnings—breach of industry codes.................................. 147

Division 5—Industry standards                                                                          148

68.......... ACMA may determine an industry standard if a request for an industry code is not complied with        148

69.......... ACMA may determine industry standard where no industry body or association formed       149

70.......... ACMA may determine industry standards—total failure of industry codes             150

71.......... ACMA may determine industry standards—partial failure of industry codes          151

72.......... Compliance with industry standards............................................... 152

73.......... Formal warnings—breach of industry standards............................ 153

74.......... Variation of industry standards....................................................... 153

75.......... Revocation of industry standards.................................................... 153

76.......... Public consultation on industry standards....................................... 154

77.......... Consultation with designated body................................................. 154

Division 6—Register of industry codes and industry standards        155

78.......... ACMA to maintain Register of industry codes and industry standards 155

Part 6—Online provider rules                                                                                    156

79.......... Online provider rules...................................................................... 156

80.......... Online provider determinations....................................................... 156

81.......... Exemptions from online provider determinations............................ 157

82.......... Compliance with online provider rules............................................ 157

83.......... Remedial directions—breach of online provider rules..................... 158

84.......... Formal warnings—breach of online provider rules......................... 159

85.......... Federal Court may order a person to cease supplying internet carriage services       159

Part 7—Offences                                                                                                                160

86.......... Continuing offences........................................................................ 160

87.......... Conduct by directors, employees and agents................................... 160

Part 8—Protection from civil and criminal proceedings                            163

88.......... Protection from civil proceedings—internet service providers........ 163

Part 9—Operation of State and Territory laws etc.                                      164

90.......... Concurrent operation of State and Territory laws............................ 164

91.......... Liability of internet content hosts and internet service providers under State and Territory laws etc.       164

Part 10—Review of decisions                                                                                      166

92.......... Review by the AAT........................................................................ 166

93.......... Notification of decisions to include notification of reasons and appeal rights           166

Part 11—Miscellaneous                                                                                                  167

94.......... Additional ACMA functions.......................................................... 167

95.......... Review before 1 January 2003........................................................ 167

96.......... Schedule not to affect performance of State or Territory functions. 168

Schedule 6—Datacasting services                                                                             169

Part 1—Introduction                                                                                                        169

1............ Simplified outline............................................................................ 169

2............ Definitions...................................................................................... 170

3............ Educational programs...................................................................... 173

4............ Information‑only programs............................................................. 173

5............ Foreign‑language news or current affairs programs........................ 175

6............ Datacasting content is taken not to be a television program or a radio program etc. 176

Part 2—Datacasting licences                                                                                       177

7............ Allocation of datacasting licence..................................................... 177

8............ When datacasting licence must not be allocated............................... 177

9............ Unsuitable applicant........................................................................ 177

10.......... Transfer of datacasting licences....................................................... 178

11.......... Surrender of datacasting licences.................................................... 179

12.......... ACMA to maintain Register of datacasting licences that are not restricted datacasting licences               179

12A....... ACMA to maintain Register of restricted datacasting licences........ 179

Part 3—Conditions of datacasting licences                                                        180

Division 1—Genre conditions                                                                               180

13.......... Category A television programs...................................................... 180

14.......... Condition relating to category A television programs..................... 181

15.......... Category B television programs...................................................... 182

16.......... Condition relating to category B television programs...................... 183

17.......... Genre conditions do not apply to Parliamentary proceedings etc.... 184

18.......... Genre conditions do not apply to matter that consists of no more than text or still visual images etc.      185

18A....... Genre conditions do not apply to advertising or sponsorship material 186

19.......... Genre conditions do not apply to interactive computer games......... 186

20.......... Genre conditions do not apply to internet carriage services or ordinary electronic mail            186

20AA.... Genre conditions do not apply to certain content copied from the internet                186

Division 2—Audio content condition                                                                188

21.......... Audio content condition.................................................................. 188

22.......... Audio content condition does not apply to Parliamentary proceedings etc.              189

23.......... Audio content condition does not apply to matter that consists of no more than text or still visual images etc.        190

23A....... Audio content condition does not apply to advertising or sponsorship material       190

Division 2A—Genre conditions: anti‑avoidance                                        191

23B....... Anti‑avoidance—declared internet carriage services....................... 191

Division 3—Other conditions                                                                               192

24.......... General conditions.......................................................................... 192

24A....... Special conditions for restricted datacasting licences....................... 194

25.......... Suitability condition........................................................................ 194

26.......... Additional conditions imposed by the ACMA................................ 195

27.......... Restricted access system................................................................. 196

Division 4—Exemption orders for content copied from the internet 197

27A....... Exemption orders in relation to content copied from the internet..... 197

Part 4—Codes of practice                                                                                             198

28.......... Development of codes of practice................................................... 198

29.......... Review by the ACMA.................................................................... 201

30.......... ACMA to maintain Register of codes of practice............................ 202

31.......... ACMA may determine standards where codes of practice fail or where no code of practice developed  202

32.......... Consultation on standards............................................................... 202

33.......... Notification of determination or variation or revocation of standards 203

34.......... Limitation of ACMA’s power in relation to standards.................... 203

35.......... This Part does not apply to internet carriage services or ordinary electronic mail     203

35A....... This Part does not apply to the ABC or SBS.................................. 203

Part 5—Complaints to the ACMA about datacasting services              204

36.......... Complaints about offences or breach of licence conditions............. 204

37.......... Complaints under codes of practice................................................. 204

38.......... Investigation of complaints by the ACMA..................................... 205

Part 6—Control of datacasting transmitter licences                                     206

41.......... Datacasting transmitter licences not to be controlled by ABC or SBS 206

Part 7—Nominated datacaster declarations                                                      207

42.......... Object of this Part........................................................................... 207

43.......... Datacasting transmitter licence........................................................ 207

44.......... Applications for nominated datacaster declarations......................... 207

45.......... Making a nominated datacaster declaration..................................... 208

46.......... Effect of nominated datacaster declaration....................................... 208

47.......... Revocation of nominated datacaster declaration.............................. 209

48.......... Register of nominated datacaster declarations................................. 210

Part 8—Remedies for breaches of licensing provisions                              211

Division 1—Providing a datacasting service without a licence          211

49.......... Prohibition on providing a datacasting service without a licence..... 211

50.......... Remedial directions—unlicensed datacasting services.................... 211

51.......... Exemption for broadcasting licensees etc........................................ 212

51A....... Exemption for designated teletext services...................................... 213

Division 2—Breaches of licence conditions                                                   214

52.......... Offence for breach of conditions..................................................... 214

52A....... Civil penalty provision relating to breach of conditions of datacasting licences        214

53.......... Remedial directions—breach of conditions..................................... 215

54.......... Suspension and cancellation............................................................ 216

55.......... Injunctions...................................................................................... 217

56.......... Federal Court’s powers relating to injunctions................................ 218

57.......... Stay of proceedings relating to additional licence conditions, remedial directions and suspension/cancellation decisions........................................................................................................ 219

Part 9—Review of decisions                                                                                        222

58.......... Review by the Administrative Appeals Tribunal............................. 222

59.......... Notification of decisions to include notification of reasons and appeal rights           223

Schedule 7—Content services                                                                                     224

Part 1—Introduction                                                                                                        224

1............ Simplified outline............................................................................ 224

2............ Definitions...................................................................................... 226

3............ Australian connection...................................................................... 235

4............ Hosting service............................................................................... 236

5............ Content service provider................................................................. 236

6............ When content is provided by a content service................................ 236

7............ When content service is provided to the public etc.......................... 237

8............ Links to content............................................................................... 237

9............ Services supplied by way of a voice call or video call..................... 237

9A......... Ancillary subscription television content service............................. 237

10.......... Classification of live content etc...................................................... 238

11.......... Eligible electronic publication.......................................................... 239

12.......... Re‑transmitted broadcasting services.............................................. 240

13.......... Re‑transmitted datacasting services................................................. 240

14.......... Restricted access system................................................................. 240

15.......... R 18+ content and MA 15+ content................................................ 241

16.......... Content that consists of a film......................................................... 242

17.......... Extended meaning of use................................................................ 242

18.......... Trained content assessor................................................................. 243

19.......... Extra‑territorial application.............................................................. 243

Part 2—Classification of content                                                                              244

Division 1—Prohibited content and potential prohibited content     244

20.......... Prohibited content........................................................................... 244

21.......... Potential prohibited content............................................................. 245

Division 2—Classification of content                                                               246

22.......... Applications for classification of content........................................ 246

23.......... Classification of content.................................................................. 247

24.......... Classification of content that consists of a film, a computer game or an eligible electronic publication    247

25.......... Classification of content that does not consist of a film, a computer game or an eligible electronic publication        248

26.......... Deemed classification of content classified under Schedule 5......... 248

27.......... Fees................................................................................................. 249

Division 3—Reclassification                                                                                  251

28.......... Reclassification of content............................................................... 251

29.......... Notice of intention to reclassify content.......................................... 251

Division 4—Review of classification decisions                                            253

Subdivision A—Review of classification of content                                      253

30.......... Persons who may apply for review................................................. 253

31.......... Applications for review................................................................... 254

32.......... Classification Review Board may refuse to deal with review applications that are frivolous etc.             255

33.......... Review............................................................................................ 255

Subdivision B—Review of content that consists of a film or a computer game             256

34.......... Review of classification of content that consists of a film or a computer game        256

Subdivision C—Review of content that consists of an eligible electronic publication  256

35.......... Review of classification of content that consists of an eligible electronic publication               256

Division 5—Miscellaneous                                                                                     258

36.......... Decisions of the Classification Board etc........................................ 258

Part 3—Complaints to, and investigations by, the ACMA                       259

Division 1—Making of complaints to the ACMA                                      259

37.......... Complaints about prohibited content or potential prohibited content 259

38.......... Complaints relating to breach of a designated content/hosting service provider rule etc.          261

39.......... Form of complaint........................................................................... 261

40.......... Recordings of live content............................................................... 261

41.......... Residency etc. of complainant......................................................... 262

42.......... Escalation of complaints made under industry codes etc................. 262

Division 2—Investigations by the ACMA                                                      264

43.......... Investigation of complaints by the ACMA..................................... 264

44.......... ACMA may investigate matters on its own initiative...................... 264

45.......... Conduct of investigations................................................................ 265

46.......... Protection from civil proceedings.................................................... 265

Division 3—Action to be taken in relation to hosting services           266

47.......... Action to be taken in relation to hosting services............................ 266

48.......... Revocation of interim take‑down notices—voluntary withdrawal of content           270

49.......... Revocation of final take‑down notices—reclassification of content 270

50.......... Revocation of final take‑down notices—reclassification of content that consists of a film or a computer game       271

51.......... Revocation of final take‑down notices—reclassification of a corresponding print publication 271

52.......... Anti‑avoidance—special take‑down notices.................................... 272

53.......... Compliance with rules relating to prohibited content etc................. 273

54.......... Identification of content................................................................... 274

55.......... Application of notices under this Division...................................... 274

Division 4—Action to be taken in relation to live content services  275

56.......... Action to be taken in relation to live content services...................... 275

57.......... Undertaking—alternative to service‑cessation notice...................... 278

58.......... Revocation of service‑cessation notices—undertaking.................... 278

59.......... Revocation of final service‑cessation notices—reclassification of content                279

59A....... Anti‑avoidance—special service‑cessation notices.......................... 279

60.......... Compliance with rules relating to prohibited content etc................. 281

61.......... Identification of content................................................................... 282

Division 5—Action to be taken in relation to links services                 283

62.......... Action to be taken in relation to links services................................ 283

63.......... Revocation of interim link‑deletion notices—voluntary deletion of link 287

64.......... Revocation of final link‑deletion notices—reclassification of content 287

65.......... Revocation of final link‑deletion notices—reclassification of content that consists of a film or a computer game    288

66.......... Revocation of final link‑deletion notices—reclassification of a corresponding print publication              288

67.......... Anti‑avoidance—special link‑deletion notices................................. 289

68.......... Compliance with rules relating to prohibited content etc................. 290

Division 6—Law enforcement agencies                                                          292

69.......... Referral of matters to law enforcement agencies............................. 292

70.......... Deferral of action in order to avoid prejudicing a criminal investigation—hosting services     293

71.......... Deferral of action in order to avoid prejudicing a criminal investigation—live content services               293

72.......... Deferral of action in order to avoid prejudicing a criminal investigation—links services         294

Part 4—Industry codes and industry standards                                             295

Division 1—Simplified outline                                                                              295

73.......... Simplified outline............................................................................ 295

Division 2—Interpretation                                                                                     296

74.......... Industry codes................................................................................. 296

75.......... Industry standards........................................................................... 296

76.......... Content activity............................................................................... 296

77.......... Sections of the content industry...................................................... 296

78.......... Participants in a section of the content industry............................... 297

79.......... Designated body............................................................................. 297

Division 3—General principles relating to industry codes and industry standards        298

80.......... Statement of regulatory policy......................................................... 298

81.......... Matters that must be dealt with by industry codes and industry standards—commercial content providers             298

82.......... Examples of matters that may be dealt with by industry codes and industry standards            300

83.......... Escalation of complaints.................................................................. 302

84.......... Collection of personal information.................................................. 302

Division 4—Industry codes                                                                                    303

85.......... Registration of industry codes......................................................... 303

86.......... ACMA may request codes.............................................................. 304

87.......... Publication of notice where no body or association represents a section of the content industry              305

88.......... Replacement of industry codes........................................................ 305

89.......... Compliance with industry codes..................................................... 306

90.......... Formal warnings—breach of industry codes.................................. 306

Division 5—Industry standards                                                                          307

91.......... ACMA may determine an industry standard if a request for an industry code is not complied with        307

92.......... ACMA may determine industry standard where no industry body or association formed       308

93.......... ACMA may determine industry standards—total failure of industry codes             308

94.......... ACMA may determine industry standards—partial failure of industry codes          310

95.......... Compliance with industry standards............................................... 311

96.......... Formal warnings—breach of industry standards............................ 311

97.......... Variation of industry standards....................................................... 312

98.......... Revocation of industry standards.................................................... 312

99.......... Public consultation on industry standards....................................... 312

100........ Consultation with designated body................................................. 313

Division 6—Register of industry codes and industry standards        314

101........ ACMA to maintain Register of industry codes and industry standards 314

Division 7—Miscellaneous                                                                                     315

102........ Industry codes may provide for matters by reference to other instruments               315

103........ Industry standards may provide for matters by reference to other instruments         315

Part 5—Designated content/hosting service provider determinations 316

104........ Designated content/hosting service provider determinations........... 316

105........ Exemptions from designated content/hosting service provider determinations         316

Part 6—Enforcement                                                                                                       318

106........ Compliance with designated content/hosting service provider rules—offence         318

107........ Compliance with designated content/hosting service provider rules—civil penalty provision  318

108........ Remedial directions—breach of designated content/hosting service provider rules  319

109........ Formal warnings—breach of designated content/hosting service provider rules      320

110........ Federal Court may order a person to cease providing designated content/hosting services      320

Part 7—Protection from civil and criminal proceedings                            321

111........ Protection from civil proceedings—service providers..................... 321

112........ Protection from criminal proceedings—ACMA, Classification Board and Classification Review Board                321

Part 8—Review of decisions                                                                                        323

113........ Review by the Administrative Appeals Tribunal............................. 323

Part 9—Miscellaneous                                                                                                     326

114........ Additional ACMA functions.......................................................... 326

115........ Recordings of content etc................................................................ 326

116........ Samples of content to be submitted for classification...................... 327

117........ Service of summons, process or notice on corporations incorporated outside Australia          327

117A..... Meaning of broadcasting service.................................................... 328

118........ Review............................................................................................ 328

119........ This Schedule does not limit Schedule 5......................................... 328

120........ This Schedule does not limit the Telecommunications Act 1997..... 328

121........ Implied freedom of political communication................................... 329

122........ Concurrent operation of State and Territory laws............................ 329

123........ Schedule not to affect performance of State or Territory functions. 329

Notes                                                                                                                                           331


Schedule 4Digital television broadcasting

Note:       See section 216A.

Part 1Introduction

  

1  Simplified outline

                   The following is a simplified outline of this Schedule:

•      The ACMA is to formulate schemes for the conversion, over time, of the transmission of television broadcasting services from analog mode to digital mode.

•      There is to be a simulcast period throughout which broadcasters are to transmit their television programs in both analog mode and SDTV digital mode.

•      At the end of the simulcast period, analog transmissions are to cease.

•      Broadcasters must meet standards relating to quotas for the transmission of programs in HDTV digital mode.

•      Broadcasters must meet standards relating to captioning of television programs for the deaf and hearing impaired.

•      Broadcasters will be allowed to use spare transmission capacity on digital transmission channels to provide datacasting services.

•      Owners and operators of broadcasting transmission towers must give digital broadcasters and datacasters access to the towers for the purposes of installing or maintaining digital transmitters.

      There are to be reviews before specified dates of certain elements of the digital television regulatory regime.

2  Definitions

                   In this Schedule, unless the contrary intention appears:

AAT means the Administrative Appeals Tribunal.

broadcasting transmission tower means:

                     (a)  a tower; or

                     (b)  a pole; or

                     (c)  a mast; or

                     (d)  a similar structure;

used to supply:

                     (e)  a broadcasting service by means of radiocommunications using the broadcasting services bands; or

                      (f)  a datacasting service provided under, and in accordance with the conditions of, a datacasting licence.

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

commercial television conversion scheme means a scheme under clause 6.

coverage area means:

                     (a)  a metropolitan coverage area; or

                     (b)  a regional coverage area.

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

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

designated teletext service means a teletext service provided by a commercial television broadcasting licensee, where:

                     (a)  the licensee provided the service throughout the 2‑year period ending immediately before the commencement of Schedule 6; and

                     (b)  the service remains substantially the same as the service provided throughout that 2‑year period.

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

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

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

HDTV commercial television format standard means:

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

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

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

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

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

HDTV national television format standard means:

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

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

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

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

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

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

                     (a)  New South Wales; or

                     (b)  Victoria; or

                     (c)  Queensland; or

                     (d)  Western Australia; or

                     (e)  South Australia;

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

national broadcasting service does not include a broadcasting service provided under the Parliamentary Proceedings Broadcasting Act 1946.

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

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

national television conversion scheme means a scheme under clause 19.

news or current affairs program means any of the following:

                     (a)  a news bulletin;

                     (b)  a sports news bulletin;

                     (c)  a program (whether presenter‑based or not) whose sole or dominant purpose is to provide analysis, commentary or discussion principally designed to inform the general community about social, economic or political issues of current relevance to the general community.

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

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

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

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

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

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

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

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

remote licence area has the meaning given by clause 5.

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

SDTV commercial television format standard means:

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

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

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

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

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

SDTV national television format standard means:

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

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

simulcast‑equivalent period:

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

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

simulcast period:

                     (a)  in relation to a commercial television broadcasting service where the licence area concerned is a metropolitan licence area or a regional licence area, but not a remote licence area—has the meaning given by paragraph 6(3)(c) of this Schedule; and

                     (b)  in relation to a commercial television broadcasting service where the licence area concerned is a remote licence area—has the meaning given by subclause 6(7) of this Schedule; and

                     (c)  in relation to a national television broadcasting service where the coverage area concerned is not a remote coverage area—has the meaning given by paragraph 19(3)(c) of this Schedule; and

                     (d)  in relation to a national television broadcasting service where the coverage area concerned is a remote coverage area—has the meaning given by subclause 19(7) of this Schedule.

television broadcasting service means:

                     (a)  a commercial television broadcasting service; or

                     (b)  a national television broadcasting service.

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

3  Analog mode

                   For the purposes of this Schedule, a program or service is broadcast or transmitted in analog mode if the program or service is broadcast or transmitted using an analog modulation technique.

4  Digital mode

                   For the purposes of this Schedule, a program or service is broadcast or transmitted in digital mode if the program or service is broadcast or transmitted using a digital modulation technique.

4A  HDTV digital mode

                   For the purposes of this Schedule, a television program or a television broadcasting service is broadcast or transmitted in HDTV digital mode if the program or service is broadcast or transmitted in digital mode in a high definition format.

4B  SDTV digital mode

                   For the purposes of this Schedule, a program or a television broadcasting service is broadcast or transmitted in SDTV digital mode if the program or service is broadcast or transmitted in digital mode in a standard definition format.

4C  Simulcast‑equivalent period for a licence area

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

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

4D  Simulcast‑equivalent period for a coverage area

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

5  Remote licence area

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

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

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

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

5A  SDTV multi‑channelled commercial television broadcasting service

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

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

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

                              (i)  using multi‑channelling transmission capacity; or

                             (ii)  with the use of a satellite; and

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

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

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

5B  HDTV multi‑channelled commercial television broadcasting service

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

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

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

                              (i)  using multi‑channelling transmission capacity; or

                             (ii)  with the use of a satellite; and

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

5C  SDTV multi‑channelled national television broadcasting service

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

                     (a)  the service is provided by:

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

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

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

                              (i)  using multi‑channelling transmission capacity; or

                             (ii)  with the use of a satellite; and

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

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

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

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

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

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

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

5D  HDTV multi‑channelled national television broadcasting service

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

                     (a)  the service is provided by:

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

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

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

                              (i)  using multi‑channelling transmission capacity; or

                             (ii)  with the use of a satellite; and

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

5E  Designated HDTV multi‑channelled national television broadcasting service

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

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

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

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

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

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

             (1)  The Minister may, by legislative instrument:

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

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

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

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

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

Variation

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

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

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

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

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

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

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

                             (ii)  a national broadcaster; and

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

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

Consultation

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

5H  Reports on transmission blackspots

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

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

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

5J  Overlapping coverage areas

                   If:

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

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

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


 

Part 2Commercial television

  

6  Commercial television conversion scheme

             (1)  As soon as practicable after the commencement of this clause, the ACMA must, by writing, formulate a scheme (the commercial television conversion scheme) for the conversion, over time, of the transmission of commercial television broadcasting services from analog mode to digital mode.

             (2)  The commercial television conversion scheme is to be divided into the following Parts:

                     (a)  Part A, which is to deal with licence areas that are not remote licence areas;

                     (b)  Part B, which is to deal with remote licence areas.

Policy objectives

             (3)  Part A of the commercial television conversion scheme must be directed towards ensuring the achievement of the following policy objectives:

                     (a)  the objective that each holder of a commercial television broadcasting licence for a metropolitan licence area is required to commence transmitting the commercial television broadcasting service concerned in SDTV digital mode in that area on 1 January 2001;

                     (b)  the objective that each holder of a commercial television broadcasting licence for a regional licence area is required to commence transmitting the commercial television broadcasting service concerned in SDTV digital mode in that area by such date during the period:

                              (i)  beginning on 1 January 2001; and

                             (ii)  ending immediately before 1 January 2004;

                            as the ACMA determines under the scheme;

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

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

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

                           (iia)  in the case of a regional licence area—to run until the end of 31 December 2013 or for such other period as is determined under subclause 6A(2) in relation to that area; and

                            (iii)  in the case of a metropolitan licence area—to begin on 1 January 2001; and

                            (iv)  in the case of a regional licence area—to begin on the date determined in relation to that area in accordance with paragraph (b);

                            throughout which the holder of a commercial television broadcasting licence for that area is required to transmit simultaneously the commercial television broadcasting service concerned in both analog mode and SDTV digital mode in so much of that area as is not a digital‑only local market area;

                     (d)  the objective that, throughout the simulcast period for a licence area, the holder of a commercial television broadcasting licence for that area should be authorised, under one or more transmitter licences, to use one or more additional channels to transmit the commercial television broadcasting service concerned in digital mode in that area;

                     (e)  the objective that each additional channel should occupy 7 MHz of bandwidth;

                      (f)  the objective that, as soon as is practicable after the start of the simulcast period for a licence area, and throughout the remainder of that period, the transmission of a commercial television broadcasting service in SDTV digital mode in so much of that area as is not a digital‑only local market area should achieve the same level of coverage and potential reception quality as is achieved by the transmission of that service in analog mode in so much of that area as is not a digital‑only local market area;

                     (g)  the objective that, during the simulcast period for a licence area, there should, as far as is practicable, be co‑location of:

                              (i)  transmitters used by the holder of a commercial television broadcasting licence for that area to transmit the commercial television broadcasting service concerned in digital mode in so much of that area as is not a digital‑only local market area; and

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

                    (ga)  the objective that, during the simulcast period for a licence area, no transmissions of commercial television broadcasting services in analog mode are to be made in so much of that area as is a digital‑only local market area;

                     (h)  the objective that, at the end of the simulcast period for a licence area, all transmissions of commercial television broadcasting services in analog mode in that area are to cease;

                   (ha)  the objective that, after the end of the simulcast period for a licence area, each holder of a commercial television broadcasting licence for that area is to transmit the commercial television broadcasting service concerned in digital mode in that area using such channel or channels as the ACMA allots under the scheme or a digital channel plan, having regard to:

                              (i)  the need to plan the most efficient use of the spectrum; and

                             (ii)  the other relevant policy objectives of the scheme;

                      (j)  the objective that, after the end of the simulcast period for a licence area, the transmission of a commercial television broadcasting service in SDTV digital mode in so much of that area as was not a digital‑only local market area should achieve the same level of coverage and potential reception quality as was achieved by the transmission of that service in analog mode in so much of that area as was not a digital‑only local market area immediately before the end of that period;

                    (ja)  the objective that, after a local market area becomes a digital‑only local market area, the transmission of a commercial television broadcasting service in SDTV digital mode in the digital‑only local market area should achieve the same level of coverage and potential reception quality as was achieved by the transmission of that service in analog mode in the local market area immediately before the local market area became a digital‑only local market area;

                     (k)  the objective that holders of commercial television broadcasting licences be permitted to use any spare transmission capacity that is available on the digital transmission channels for the purpose of the transmission of either or both of the following:

                              (i)  datacasting services provided under, and in accordance with the conditions of, datacasting licences;

                             (ii)  designated teletext services;

                      (l)  the objective that the ACMA is to consult holders of commercial television broadcasting licences about the implementation of the scheme;

                    (m)  the objective that, if the implementation of the scheme affects particular broadcasting transmission towers, the ACMA is to consult the owners and operators of those towers;

                     (n)  the objective that, in allotting channels under the scheme or a digital channel plan, the ACMA must have regard to:

                              (i)  the need to plan the most efficient use of the spectrum; and

                             (ii)  the other relevant policy objectives of the scheme.

             (4)  Subclause (3) does not prevent the commercial television conversion scheme from allowing the holder of a commercial television broadcasting licence for a regional licence area to transmit the commercial television broadcasting service concerned in digital mode in that area during the whole or a part of the period:

                     (a)  beginning on 1 January 2001; and

                     (b)  ending immediately before the start of the simulcast period for that area;

so long as that transmission complies with such requirements as are ascertained in accordance with the scheme.

             (5)  Subclause (3) does not prevent Part A of the commercial television conversion scheme from allowing the holder of a commercial television broadcasting licence for a licence area to transmit, on a test basis, the commercial television broadcasting service concerned in digital mode in that area before the start of the simulcast period for that area, so long as that transmission:

                     (a)  complies with such requirements as are ascertained in accordance with that Part of the scheme; and

                     (b)  occurs during a period ascertained in accordance with that Part of the scheme.

          (5A)  If:

                     (a)  the holder of a commercial television broadcasting licence holds another commercial television broadcasting licence; and

                     (b)  the other licence was allocated under section 38A or 38B; and

                     (c)  the licences relate to the same licence area (within the meaning of whichever of those sections is applicable); and

                     (d)  either:

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

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

then:

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

                      (f)  Part A of the commercial television conversion scheme must be directed towards ensuring the achievement of the objectives set out in subclause (5B).

       (5AA)  If:

                     (a)  the holder of a commercial television broadcasting licence holds another commercial television broadcasting licence; and

                     (b)  the other licence was allocated under section 38A before 1 January 2001; and

                     (c)  the licences relate to the same licence area (within the meaning of that section); and

                     (d)  within 90 days after the commencement of this subclause, the holder gives the ACMA a written notice electing that this subclause apply to both of the commercial television broadcasting services concerned;

then:

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

                      (f)  Part A of the commercial television conversion scheme must be directed towards ensuring the achievement of the objectives set out in subclause (5B).

          (5B)  The objectives mentioned in paragraphs (5A)(f) and (5AA)(f) are as follows:

                     (a)  the objective that, throughout the simulcast period for the licence area, the holder should be authorised, under one or more transmitter licences, to use one or more particular channels to transmit the commercial television broadcasting services provided under the commercial television broadcasting licences referred to in whichever of paragraph (5A)(a) or (5AA)(a) is applicable in digital mode in that area using multi‑channelling transmission capacity on each channel;

                     (b)  the objective that each channel should occupy 7 MHz of bandwidth.

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

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

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

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

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

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

          (5C)  Paragraphs (3)(c), (d), (e), (f), (h) and (j) do not apply to a commercial television broadcasting service provided under a licence allocated under section 38B.

Note:          Under section 38B, it is a condition of the licence that the service may only be transmitted in digital mode.

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

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

                     (a)  the need for spectrum to be made available for allocation for the purposes of the transmission of datacasting services under, and in accordance with the conditions of, datacasting licences; and

                     (b)  such other matters as the ACMA considers relevant.

             (6)  The objective mentioned in paragraph (3)(g) (which deals with co‑location of transmitters) does not prevent Part A of the commercial television conversion scheme from making provision for the location of digital transmitters otherwise than as mentioned in that paragraph, where the ACMA is satisfied that an alternative location is appropriate having regard to:

                     (a)  the remaining objectives set out in subclause (3); and

                     (b)  the costs that are likely to be incurred by the licensee concerned; and

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

Remote licence areas—start‑up of digital transmission

          (6A)  Part B of the commercial television conversion scheme must be directed towards ensuring the achievement of the policy objective that each holder of a commercial television broadcasting licence for a remote licence area is required to commence transmitting the commercial television broadcasting service concerned in SDTV digital mode in that area by such date as the ACMA determines under the scheme.

Remote licence areas—simulcast period

             (7)  Part B of the commercial television conversion scheme may make provision for a transitional period for a specified remote licence area, that is to be known as the simulcast period, throughout which the holder of a commercial television broadcasting licence for that area is required to transmit simultaneously the commercial television broadcasting service concerned in both analog mode and SDTV digital mode in that area.

          (7A)  The simulcast period for a particular remote licence area:

                     (a)  is to begin on the date determined in relation to that area in accordance with subclause (6A); and

                     (b)  is to run for such period as the ACMA determines under the scheme.

Note:          See also clause 6B.

Special rules for section 38B licences in remote licence areas

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

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

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

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

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

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

                              (i)  a company that made the election; or

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

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

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

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

                     (a)  each of these:

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

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

                     (b)  each of these:

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

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

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

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

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

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

HDTV multi‑channelled commercial television broadcasting services

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

SDTV multi‑channelled commercial television broadcasting services

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

Licences allocated under section 36 on or after 1 January 2007

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

Licences allocated under section 38C

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

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

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

Simulcasting

             (8)  In determining, for the purposes of paragraph (3)(c) and subclause (7), whether the holder of a commercial television broadcasting licence transmits simultaneously the commercial television broadcasting service concerned in both analog mode and SDTV digital mode:

                     (a)  if a relevant determination is in force under subclause (9)—ignore any advertising or sponsorship matter covered by the determination, so long as the licensee complies with such conditions (if any) as are specified in the determination; and

                     (b)  if a relevant determination is in force under subclause (10)—ignore any television programs covered by the determination, so long as the licensee complies with such conditions (if any) as are specified in the determination; and

                     (c)  ignore any digital program‑enhancement content (as defined by subclause (14)); and

                     (d)  ignore a particular television program transmitted using multi‑channelling transmission capacity, where:

                              (i)  the program is a scheduled program that provides live coverage of a designated event (as defined by subclause (20)); and

                             (ii)  the other television program broadcast using that multi‑channelling transmission capacity is a regularly scheduled news program; and

                            (iii)  the end of the designated event is delayed for reasons that are not within the control of the licensee or of the person (if any) who supplied the first‑mentioned program to the licensee (either directly or indirectly through one or more interposed persons); and

                            (iv)  the sole purpose of the use of the multi‑channelling transmission capacity is to allow viewers of the SDTV version of the commercial television broadcasting service to choose between viewing the regularly scheduled news program and viewing so much of the designated event as overlaps the other television program; and

                     (e)  ignore an electronic program guide (as defined by subclause (24)).

          (8A)  For the purposes of this Act (other than paragraph (3)(c) or subclauses (7), (8) and (11) of this clause or Division 2 of Part 4 of this Schedule) and any other law of the Commonwealth, if the holder of a commercial television broadcasting licence transmits matter that is required to be ignored by paragraph (8)(c), (d) or (e) of this clause, that matter is taken to be part of the commercial television broadcasting service concerned.

             (9)  The ACMA may, by writing, determine that paragraph (8)(a) applies to specified advertising or sponsorship matter transmitted by a specified commercial television broadcasting licensee during a specified period. The specified advertising or sponsorship matter may consist of all advertising or sponsorship matter transmitted by the licensee concerned. The specified period may consist of the simulcast period for the licence area concerned.

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

           (10)  The ACMA may, by writing, determine that paragraph (8)(b) applies to specified television programs transmitted by a specified commercial television broadcasting licensee during a specified period.

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

           (11)  The ACMA must not make a determination under subclause (9) or (10) unless the ACMA is satisfied that, if it were assumed that the determination were made, the version of the commercial television broadcasting service transmitted in SDTV digital mode will be substantially the same as the version of the service transmitted in analog mode.

           (12)  A determination under subclause (9) or (10) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

           (13)  A reference in this clause to advertising or sponsorship matter is a reference to advertising or sponsorship matter (whether or not of a commercial kind).

Digital program‑enhancement content

           (14)  For the purposes of this clause, digital program‑enhancement content is content:

                     (a)  whether in the form of text; or

                     (b)  whether in the form of data; or

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

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

                     (e)  whether in any other form; or

                      (f)  whether in any combination of forms;

where:

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

                     (h)  the sole purpose of the transmission of the content is to enhance a television program (the primary program); and

                      (i)  the subject matter of the content is closely and directly linked to the subject matter of the primary program; and

                      (j)  the licensee transmits simultaneously the content and the primary program; and

                     (k)  either:

                              (i)  the licensee transmits simultaneously the primary program in both analog mode and SDTV digital mode; or

                             (ii)  the primary program is covered by a determination under subclause (9) or (10).

Note:          For example, if the primary program is live coverage of a tennis match, the digital program‑enhancement content could consist of any or all of the following:

(a)           the match from different camera angles;

(b)           each player’s results in past matches;

(c)           video highlights from those past matches;

(d)           each player’s ranking and career highlights.

Designated event

           (20)  For the purposes of this clause, a designated event is:

                     (a)  a sporting event; or

                     (b)  a declared designated event (as defined by subclause (21)).

           (21)  The ACMA may, by writing, determine that a specified event is a declared designated event for the purposes of this clause.

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

           (22)  A determination under subclause (21) has effect accordingly.

           (23)  A determination under subclause (21) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Electronic program guide

           (24)  For the purposes of this clause, an electronic program guide is matter transmitted using a uniform digital modulation technique, where the matter consists of no more than:

                     (a)  a schedule of the television programs provided by:

                              (i)  the commercial television broadcasting service transmitting the matter; or

                             (ii)  all of the commercial television broadcasting services and all of the national television broadcasting services; or

                     (b)  a combination of:

                              (i)  a schedule covered by paragraph (a); and

                             (ii)  items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief and in the form of text; or

                     (c)  a combination of:

                              (i)  a schedule covered by paragraph (a); and

                             (ii)  a facility the sole purpose of which is to enable an end‑user to select, and commence viewing, one or more of the programs in the schedule; or

                     (d)  a combination of:

                              (i)  a schedule covered by paragraph (a); and

                             (ii)  items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief and in the form of text; and

                            (iii)  a facility the sole purpose of which is to enable an end‑user to select, and commence viewing, one or more of the programs in the schedule.

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

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

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

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

Note:          See subclause (11).

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

Note:          See subclause (11).

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

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

Variation

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

                     (a)  a subclause (1) determination; or

                     (b)  a subclause (2) determination.

             (8)  The Minister must not vary:

                     (a)  a subclause (1) determination; or

                     (b)  a subclause (2) determination;

after the end of the period specified in the determination.

             (9)  If there is a variation of:

                     (a)  a subclause (1) determination; or

                     (b)  a subclause (2) determination;

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

           (10)  If there is a variation of:

                     (a)  a subclause (1) determination; or

                     (b)  a subclause (2) determination;

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

                     (c)  the end of 31 December 2013;

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

Note:          See subclause (11).

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

                     (a)  a subclause (1) determination; or

                     (b)  a subclause (2) determination;

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

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

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

                             (ii)  a national broadcaster; and

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

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

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

Consultation

           (13)  Before making or varying:

                     (a)  a subclause (1) determination; or

                     (b)  a subclause (2) determination;

the Minister must consult the ACMA.

6B  Determination of simulcast period—remote licence areas

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

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

6C  Digital conversion of re‑transmission facilities

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

             (2)  The objective is that, if:

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

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

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

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

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

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

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

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

then:

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

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

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

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

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

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

                     (c)  there is no local market area included in the licence area of the licence;

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

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

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

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

                     (c)  a local market area is included in the licence area of the licence;

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

7  Scheme may confer administrative powers on the ACMA

                   The commercial television conversion scheme may make provision with respect to a matter by conferring on the ACMA a power to make a decision of an administrative character.

7A  Scheme may confer power to make digital channel plans

             (1)  The commercial television conversion scheme may provide for the ACMA to make one or more plans (digital channel plans) that:

                     (a)  allot channels to holders of commercial television broadcasting licences; and

                     (b)  set out any technical limitations on the use of a particular channel that the ACMA believes should be shown in the plan; and

                     (c)  set out whether the use of a channel depends on any event or circumstances described in the plan.

             (2)  The commercial television conversion scheme may provide that a digital channel plan may include other matters.

             (3)  The commercial television conversion scheme may provide for the ACMA to vary a digital channel plan.

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

7B  Revocation of multi‑channelling election

Scope

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

Approval of revocation

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

                     (a)  approve the revocation; and

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

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

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

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

Refusal to approve revocation

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

8  Transmitter licences

Grant of additional spectrum for digital transmission

             (1)  The commercial television conversion scheme must make provision for the issue of transmitter licences authorising transmissions of commercial television broadcasting services in digital mode.

Return of spectrum if digital transmission does not begin

             (2)  Part A of the commercial television conversion scheme must make provision for requiring the holder of a commercial television broadcasting licence to surrender one or more transmitter licences authorising digital transmission if:

                     (a)  the holder does not commence digital transmission as mentioned in paragraph 6(3)(a) or (b) of this Schedule; and

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

Return of spectrum if digital transmission does not continue throughout the simulcast period

             (3)  Part A of the commercial television conversion scheme must make provision for requiring the holder of a commercial television broadcasting licence to surrender one or more transmitter licences authorising digital transmission if:

                     (a)  the holder commences digital transmission as mentioned in paragraph 6(3)(a) or (b) of this Schedule; and

                     (b)  the holder ceases digital transmission during the simulcast period for the licence area concerned; and

                     (c)  under the scheme, the ACMA gives the holder a written direction to:

                              (i)  resume digital transmission in that area within the period specified in the direction (being a period that is not longer than one month); and

                             (ii)  continue digital transmission throughout the simulcast period for that area; and

                     (d)  the holder does not comply with a direction referred to in paragraph (c); and

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

Return of spectrum at end of simulcast period

             (4)  If, at the end of the simulcast period for a licence area, the holder of a commercial television broadcasting licence for the area holds one or more transmitter licences that authorised the transmission of the commercial television broadcasting service concerned in that area, Part A of the commercial television conversion scheme must make provision for:

                     (a)  requiring the holder to surrender the transmitter licence or licences, with effect from the end of the simulcast period; and

                     (b)  the issue, with effect from the end of the simulcast period, of one or more transmitter licences that authorise the transmission of commercial television broadcasting services in accordance with the commercial television broadcasting licence using the channel or channels mentioned in whichever of the following provisions is applicable:

                              (i)  paragraph 6(3)(ha) of this Schedule;

                             (ii)  paragraph 6(5B)(c) of this Schedule.

Return of spectrum if format and HDTV requirements contravened

             (7)  Part A of the commercial television conversion scheme must make provision for requiring the holder of a commercial television broadcasting licence for a licence area to surrender the transmitter licence or licences that authorised the transmission of the commercial television broadcasting service concerned in digital mode in that area if:

                     (a)  the holder contravenes:

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

                             (ii)  a SDTV commercial television format standard; or

                            (iii)  a HDTV commercial television format standard; or

                            (iv)  subclause 37E(1); or

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

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

                     (c)  the holder does not comply with a direction referred to in paragraph (b); and

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

             (8)  Subclause (7) does not prevent the commercial television conversion scheme from making provision for the issue of a transmitter licence to replace a licence that was surrendered on the grounds of a contravention of a provision or standard mentioned in subparagraph (7)(a)(i), (iii), (iv) or (v). However, the amount of transmission capacity covered by the replacement licence must be less than the amount of transmission capacity covered by the surrendered licence.

Remote licence areas

           (10)  Part B of the commercial television conversion scheme may make provision for requiring the holder of a commercial television broadcasting licence to surrender one or more transmitter licences authorising analog transmission or authorising digital transmission if the holder does not comply with:

                     (a)  a specified requirement of that Part of the scheme; or

                     (b)  paragraph 7(1)(mb) of Schedule 2; or

                     (c)  a SDTV commercial television format standard; or

                     (d)  a HDTV commercial television format standard; or

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

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

        (10A)  Subclause (10) does not prevent the commercial television conversion scheme from making provision for the issue of a transmitter licence to replace a licence that was surrendered on the grounds of a contravention of the provision mentioned in paragraph (10)(b) or a standard mentioned in paragraph (10)(d), (e) or (f). However, the amount of transmission capacity covered by the replacement licence must be less than the amount of transmission capacity covered by the surrendered licence.

           (11)  Part B of the commercial television conversion scheme may make provision for the variation of the conditions of a transmitter licence that authorised analog transmission of a commercial television broadcasting service in a remote licence area so as to ensure that the licence authorises digital transmission of that service in that area.

9  Submission of implementation plans to the ACMA

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

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

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

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

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

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

             (2)  The commercial television conversion scheme may provide for variation of implementation plans submitted to the ACMA by holders of commercial television broadcasting licences.

10  Amendment of certain plans and guidelines

             (1)  The commercial television conversion scheme may amend the frequency allotment plan or a licence area plan.

             (2)  The commercial television conversion scheme may amend technical planning guidelines in force under section 33.

             (3)  Subclauses (1) and (2) do not limit the ACMA’s powers under sections 25, 26 and 33.

11  Reviews and reports

                   The commercial television conversion scheme may provide for the ACMA to conduct reviews, and report to the Minister, on specified matters.

12  Ancillary or incidental provisions

                   The commercial television conversion scheme may contain such ancillary or incidental provisions as the ACMA considers appropriate.

13  ACMA to have regard to datacasting allocation power

             (1)  In formulating or varying the commercial television conversion scheme, the ACMA must have regard to its power under subsection 34(3) (which deals with datacasting allocation).

             (2)  Subclause (1) does not limit the matters to which the ACMA may have regard.

14  ACMA to have regard to special circumstances that apply in remote licence areas

             (1)  In formulating or varying Part B of the commercial television conversion scheme, the ACMA must have regard to the special circumstances that apply to the transmission of commercial television broadcasting services in remote licence areas.

             (2)  Subclause (1) does not limit the matters to which the ACMA may have regard.

15  Minister may give directions to the ACMA

             (1)  In formulating or varying the commercial television conversion scheme, the ACMA must comply with any written directions given to it by the Minister under this subclause.

             (2)  A direction under subclause (1) may be of a general or specific nature.

             (3)  The Minister must arrange for a copy of a direction under subclause (1) to be published in the Gazette within 14 days after the direction is given.

16  Variation of scheme

             (1)  The commercial television conversion scheme may be varied, but not revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

             (2)  Subclause (1) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to other instruments under this Act.

17  Scheme to be a disallowable instrument

                   An instrument under subclause 6(1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

18  Processes to be public

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

                     (a)  public consultation; and

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

                     (c)  consultation with national broadcasters; and

                     (e)  consultation with owners and operators of broadcasting transmission towers.


 

Part 3ABC/SBS television

  

19  National television conversion scheme

             (1)  As soon as practicable after the commencement of this clause, the ACMA must, by writing, formulate a scheme (the national television conversion scheme) for the conversion, over time, of the transmission of national television broadcasting services from analog mode to digital mode.

Note:          Under clause 32, the scheme does not take effect until approved by the Minister.

             (2)  The national television conversion scheme is to be divided into the following Parts:

                     (a)  Part A, which is to deal with coverage areas that are not remote coverage areas;

                     (b)  Part B, which is to deal with remote coverage areas.

Policy objectives

             (3)  Part A of the national television conversion scheme must be directed towards ensuring the achievement of the following policy objectives:

                     (a)  the objective that each national broadcaster is required to commence transmitting the national television broadcasting service concerned in SDTV digital mode in a metropolitan coverage area by such date as is ascertained in accordance with an implementation plan that was given by the broadcaster, and is in force, under clause 20;

                     (b)  the objective that each national broadcaster is required to commence transmitting the national television broadcasting service concerned in SDTV digital mode in a regional coverage area by such date as is ascertained in relation to that area in accordance with an implementation plan that was given by the broadcaster, and is in force, under clause 20;

                     (c)  the objective that there should be a transitional period for a coverage area, that is:

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

                             (ii)  to begin on the date mentioned in whichever of paragraphs (a) and (b) is applicable; and

                            (iii)  to end at the end of the simulcast period (within the meaning of paragraph 6(3)(c) of this Schedule) for the licence area that corresponds to that coverage area;

                            throughout which a national broadcaster is required to transmit simultaneously the national television broadcasting service concerned in both analog mode and SDTV digital mode in so much of that coverage area as is not a digital‑only local market area;

                     (d)  the objective that, throughout the simulcast period for a coverage area, each national broadcaster should be authorised, under one or more transmitter licences, to use one or more channels to transmit the national television broadcasting service concerned in digital mode in that area;

                     (e)  the objective that each additional channel should occupy 7 MHz of bandwidth;

                      (f)  the objective that, as soon as is practicable after the start of the simulcast period for a coverage area, and throughout the remainder of that period, the transmission of a national television broadcasting service in SDTV digital mode in so much of that area as is not a digital‑only local market area should achieve the same level of coverage and potential reception quality as is achieved by the transmission of that service in analog mode in so much of that area as is not a digital‑only local market area;

                     (g)  the objective that, during the simulcast period for a coverage area, there should, as far as is practicable, be co‑location of:

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

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

                    (ga)  the objective that, during the simulcast period for a coverage area, no transmissions of national television broadcasting services in analog mode are to be made in so much of that area as is a digital‑only local market area;

                     (h)  the objective that, at the end of the simulcast period for a coverage area, all transmissions of national television broadcasting services in analog mode in that area are to cease;

                   (ha)  the objective that, after the end of the simulcast period for a coverage area, each national broadcaster is to transmit the national broadcasting service concerned in digital mode in that area using such channel or channels as the ACMA allots under the scheme or a digital channel plan, having regard to:

                              (i)  the need to plan the most efficient use of the spectrum; and

                             (ii)  the other policy objectives of the scheme;

                      (j)  the objective that, after the end of the simulcast period for a coverage area, the transmission of a national television broadcasting service in SDTV digital mode in so much of that area as was not a digital‑only local market area should achieve the same level of coverage and potential reception quality as was achieved by the transmission of that service in analog mode in so much of that area as was not a digital‑only local market area immediately before the end of that period;

                    (ja)  the objective that, after a local market area becomes a digital‑only local market area, the transmission of a national television broadcasting service in SDTV digital mode in the digital‑only local market area should achieve the same level of coverage and potential reception quality as was achieved by the transmission of that service in analog mode in the local market area immediately before the local market area became a digital‑only local market area;

                     (k)  the objective that national broadcasters be permitted to use any spare transmission capacity that is available on the digital transmission channels for the purpose of the transmission of datacasting services provided under, and in accordance with the conditions of, datacasting licences or for the purpose of the transmission of national radio broadcasting services;

                      (l)  the objective that the ACMA is to consult with national broadcasters about the implementation of the scheme;

                    (m)  the objective that, if the implementation of the scheme affects particular broadcasting transmission towers, the ACMA is to consult the owners and operators of those towers;

                     (n)  the objective that, in allotting channels under the scheme or a digital channel plan, the ACMA must have regard to:

                              (i)  the need to plan the most efficient use of the spectrum; and

                             (ii)  the other relevant policy objectives of the scheme.

          (3A)  The ACMA must consult with national broadcasters about the implementation of the scheme.

             (4)  Subclause (3) does not prevent the national television conversion scheme from allowing a national broadcaster to transmit the national television broadcasting service concerned in digital mode in a regional coverage area during the whole or a part of the period:

                     (a)  beginning on 1 January 2001; and

                     (b)  ending immediately before the start of the simulcast period for that area;

so long as that transmission complies with such requirements as are ascertained in accordance with the scheme.

             (5)  Subclause (3) does not prevent Part A of the national television conversion scheme from allowing a national broadcaster to transmit, on a test basis, the national television broadcasting service concerned in digital mode in a coverage area before the start of the simulcast period for that area, so long as that transmission:

                     (a)  complies with such requirements as are ascertained in accordance with that Part of the scheme; and

                     (b)  occurs during a period ascertained in accordance with that Part of the scheme.

          (5A)  For the purposes of paragraphs (3)(ha) and (n), in determining the most efficient use of the spectrum, the ACMA is to have regard to:

                     (a)  the need for spectrum to be made available for allocation for the purposes of the transmission of datacasting services under, and in accordance with the conditions of, datacasting licences; and

                     (b)  such other matters as the ACMA considers relevant.

             (6)  The objective mentioned in paragraph (3)(g) (which deals with co‑location of transmitters) does not prevent Part A of the national television conversion scheme from making provision for the location of digital transmitters otherwise than as mentioned in that paragraph, where the ACMA is satisfied that an alternative location is appropriate having regard to:

                     (a)  the remaining objectives set out in subclause (3); and

                     (b)  the costs that are likely to be incurred by the national broadcaster concerned; and

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

Remote coverage areas—start‑up of digital transmission

          (6A)  Part B of the national television conversion scheme must be directed towards ensuring the achievement of the policy objective that each national broadcaster is required to commence transmitting the national television broadcasting service concerned in SDTV digital mode in a remote coverage area by such date as is ascertained in relation to that area in accordance with an implementation plan that was given by the broadcaster, and is in force, under clause 20.

Remote coverage areas—simulcast period

             (7)  Part B of the national television conversion scheme may make provision for a transitional period for a specified remote coverage area, that is to be known as the simulcast period, throughout which a national broadcaster is required to transmit simultaneously the national television broadcasting service concerned in both analog mode and SDTV digital mode in that area.

          (7A)  The simulcast period for a particular remote coverage area:

                     (a)  is to begin on the date mentioned in subclause (6A); and

                     (b)  is to end at the end of the simulcast period (within the meaning of subclause 6(7)) for the licence area that corresponds to that coverage area.

SDTV multi‑channelled national television broadcasting services

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

HDTV multi‑channelled national television broadcasting services

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

Satellite national television broadcasting services

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

Simulcasting

             (8)  In determining, for the purposes of paragraph (3)(c) and subclause (7), whether a national broadcaster transmits simultaneously the national television broadcasting service concerned in both analog mode and SDTV digital mode:

                     (a)  in the case of the Special Broadcasting Service Corporation where a relevant determination is in force under subclause (9)—ignore any advertising or sponsorship matter covered by the determination, so long as the Special Broadcasting Service Corporation complies with such conditions (if any) as are specified in the determination; and

                     (b)  if a relevant determination is in force under subclause (10)—ignore any television programs covered by the determination, so long as the national broadcaster complies with such conditions (if any) as are specified in the determination; and

                     (c)  ignore any digital program‑enhancement content (as defined by subclause (14)); and

                     (d)  ignore a particular television program transmitted using multi‑channelling transmission capacity, where:

                              (i)  the program is a scheduled program that provides live coverage of a designated event (as defined by subclause (20)); and

                             (ii)  the other television program broadcast using that multi‑channelling transmission capacity is a regularly scheduled news program; and

                            (iii)  the end of the designated event is delayed for reasons that are not within the control of the national broadcaster or of the person (if any) who supplied the first‑mentioned program to the national broadcaster (either directly or indirectly through one or more interposed persons); and

                            (iv)  the sole purpose of the use of the multi‑channelling transmission capacity is to allow viewers of the SDTV version of the national television broadcasting service to choose between viewing the regularly scheduled news program and viewing so much of the designated event as overlaps the other television program; and

                     (e)  ignore an electronic program guide (as defined by subclause (24)).

          (8A)  For the purposes of this Act (other than paragraph (3)(c) or subclauses (7), (8) and (11) of this clause or Division 2 of Part 4 of this Schedule) and any other law of the Commonwealth, if a national broadcaster transmits matter that is required to be ignored by paragraph (8)(c), (d) or (e) of this clause, that matter is taken to be part of the national television broadcasting service concerned.

             (9)  The ACMA may, by writing, determine that paragraph (8)(a) applies to specified advertising or sponsorship matter transmitted by the Special Broadcasting Service Corporation during a specified period. The specified advertising or sponsorship matter may consist of all advertising or sponsorship matter transmitted by the Special Broadcasting Service Corporation. The specified period may consist of the simulcast period for the coverage area concerned.

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

           (10)  The ACMA may, by writing, determine that paragraph (8)(b) applies to specified television programs transmitted by a specified national broadcaster during a specified period.

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

           (11)  The ACMA must not make a determination under subclause (9) or (10) unless the ACMA is satisfied that, if it were assumed that the determination were made, the version of the national television broadcasting service transmitted in SDTV digital mode will be substantially the same as the version of the service transmitted in analog mode.

           (12)  A determination under subclause (9) or (10) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

           (13)  A reference in this clause to advertising or sponsorship matter is a reference to advertising or sponsorship matter (whether or not of a commercial kind).

Digital program‑enhancement content

           (14)  For the purposes of this clause, digital program‑enhancement content is content:

                     (a)  whether in the form of text; or

                     (b)  whether in the form of data; or

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

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

                     (e)  whether in any other form; or

                      (f)  whether in any combination of forms;

where:

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

                     (h)  the sole purpose of the transmission of the content is to enhance a television program (the primary program); and

                      (i)  the subject matter of the content is closely and directly linked to the subject matter of the primary program; and

                      (j)  the national broadcaster transmits simultaneously the content and the primary program; and

                     (k)  either:

                              (i)  the national broadcaster transmits simultaneously the primary program in both analog mode and SDTV digital mode; or

                             (ii)  the primary program is covered by a determination under subclause (9) or (10).

Note:          For example, if the primary program is live coverage of a tennis match, the digital program‑enhancement content could consist of any or all of the following:

(a)           the match from different camera angles;

(b)           each player’s results in past matches;

(c)           video highlights from those past matches;

(d)           each player’s ranking and career highlights.

Designated event

           (20)  For the purposes of this clause, a designated event is:

                     (a)  a sporting event; or

                     (b)  a declared designated event (as defined by subclause (21)).

           (21)  The ACMA may, by writing, determine that a specified event is a declared designated event for the purposes of this clause.

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

           (22)  A determination under subclause (21) has effect accordingly.

           (23)  A determination under subclause (21) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Electronic program guide

           (24)  For the purposes of this clause, an electronic program guide is matter transmitted using a uniform digital modulation technique, where the matter consists of no more than:

                     (a)  a schedule of the television programs provided by:

                              (i)  the national television broadcasting service transmitting the matter; or

                             (ii)  all of the commercial television broadcasting services and all of the national television broadcasting services; or

                     (b)  a combination of:

                              (i)  a schedule covered by paragraph (a); and

                             (ii)  items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief and in the form of text; or

                     (c)  a combination of:

                              (i)  a schedule covered by paragraph (a); and

                             (ii)  a facility the sole purpose of which is to enable an end‑user to select, and commence viewing, one or more of the programs in the schedule; or

                     (d)  a combination of:

                              (i)  a schedule covered by paragraph (a); and

                             (ii)  items of factual information, and/or items of comment, about some or all of the programs in the schedule, where each item is brief and in the form of text; and

                            (iii)  a facility the sole purpose of which is to enable an end‑user to select, and commence viewing, one or more of the programs in the schedule.

20  National broadcasters to give implementation plans to the Minister

             (1)  As soon as practicable after the formulation of the national television conversion scheme, a national broadcaster must give the Minister one or more implementation plans relating to the conversion, over time, of the transmission of the national television broadcasting service concerned from analog mode to digital mode.

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

HDTV multi‑channelled national television broadcasting services

          (1B)  This clause does not apply to a HDTV multi‑channelled national television broadcasting service.

             (2)  In preparing an implementation plan, a national broadcaster must have regard to the following matters:

                     (a)  in the case of an implementation plan that relates to a coverage area that is not a remote coverage area—whether the implementation plan is directed towards ensuring the achievement of the following policy objectives:

                              (i)  the objective that each national broadcaster should be required to commence transmitting the national broadcasting service concerned in digital mode in each metropolitan coverage area on 1 January 2001;

                             (ii)  the objective that each national broadcaster should be required to commence transmitting the national television broadcasting service concerned in digital mode to regional coverage areas (other than remote coverage areas) on or after 1 January 2001 so that all regional coverage areas (other than remote coverage areas) have digital transmission of the service by 1 January 2004;

                     (b)  in the case of an implementation plan that relates to a coverage area that is not a remote coverage area—the objectives mentioned in subclause 19(3);

                     (c)  in the case of an implementation plan that relates to a remote coverage area—the special circumstances that apply to the transmission of national television broadcasting services in that area;

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

             (3)  If an implementation plan is given to the Minister under this clause, the Minister must:

                     (a)  approve the implementation plan; or

                     (b)  refuse to approve the implementation plan.

             (4)  In deciding whether to approve an implementation plan under this clause, the Minister must have regard to the following matters:

                     (a)  in the case of an implementation plan that relates to a coverage area that is not a remote coverage area—whether the implementation plan is directed towards ensuring the achievement of the following policy objectives:

                              (i)  the objective that each national broadcaster should be required to commence transmitting the national broadcasting service concerned in digital mode in each metropolitan coverage area on 1 January 2001;

                             (ii)  the objective that each national broadcaster should be required to commence transmitting the national television broadcasting service concerned in digital mode to regional coverage areas (other than remote coverage areas) on or after 1 January 2001 so that all regional coverage areas (other than remote coverage areas) have digital transmission of the service by 1 January 2004;

                     (b)  in the case of an implementation plan that relates to a coverage area that is not a remote coverage area—the objectives mentioned in subclause 19(3);

                     (c)  in the case of an implementation plan that relates to a remote coverage area—the special circumstances that apply to the transmission of national television broadcasting services in that area;

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

             (5)  Before deciding whether to approve an implementation plan under this clause, the Minister may direct the ACMA to give the Minister a report about the matter.

             (6)  If the Minister approves an implementation plan under this clause, the implementation plan comes into force on approval.

             (7)  If the Minister refuses to approve an implementation plan under this clause, the Minister may, by written notice given to the national broadcaster concerned:

                     (a)  require the national broadcaster to give a fresh implementation plan under subclause (1); and

                     (b)  advise the national broadcaster that, if specified changes were incorporated in the fresh plan, the Minister would be disposed to approve the fresh plan.

The notice must also set out the reasons for the refusal.

             (8)  The Minister must cause copies of a notice under subclause (7) to be laid before each House of the Parliament within 7 sitting days of that House after the giving of the notice.

             (9)  A national broadcaster may give the Minister a variation of an approved implementation plan that relates to the national broadcaster. Subclauses (2) to (8) (inclusive) apply to the variation of an implementation plan in a corresponding way to the way in which they apply to an implementation plan.

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

                     (a)  the Secretary of the Department; or

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

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

21  Compliance with implementation plans

                   If an implementation plan given by a national broadcaster under clause 20 is in force, the national broadcaster must comply with the implementation plan.

22  Scheme may confer administrative powers on the ACMA

                   The national television conversion scheme may make provision with respect to a matter by conferring on the ACMA a power to make a decision of an administrative character.

22A  Scheme may confer power to make digital channel plans

             (1)  The national television conversion scheme may provide for the ACMA to make one or more plans (digital channel plans) that:

                     (a)  allot channels to national broadcasters; and

                     (b)  set out any technical limitations on the use of a particular channel that the ACMA believes should be shown in the plan; and

                     (c)  set out whether the use of a channel depends on any event or circumstances described in the plan.

             (2)  The national television conversion scheme may provide that a digital channel plan may include other matters.

             (3)  The national television conversion scheme may provide for the ACMA to vary a digital channel plan.

23  Transmitter licences

Grant of additional spectrum for digital transmission

             (1)  The national television conversion scheme must make provision for the issue of transmitter licences authorising transmissions of national television broadcasting services in digital mode.

Return of spectrum if digital transmission does not begin

             (2)  Part A of the national television conversion scheme must make provision for requiring a national broadcaster to surrender one or more transmitter licences authorising digital transmission if:

                     (a)  the national broadcaster does not commence digital transmission as mentioned in paragraph 19(3)(a) or (b) of this Schedule; and

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

Return of spectrum if digital transmission does not continue throughout the simulcast period

             (3)  Part A of the national television conversion scheme must make provision for requiring a national broadcaster to surrender one or more transmitter licences authorising digital transmission if:

                     (a)  the national broadcaster commences digital transmission as mentioned in paragraph 19(3)(a) or (b) of this Schedule; and

                     (b)  the national broadcaster ceases digital transmission during the simulcast period for the coverage area concerned; and

                     (c)  under the scheme, the ACMA gives the national broadcaster a written direction to:

                              (i)  resume digital transmission in that area within the period specified in the direction (being a period that is not longer than one month); and

                             (ii)  continue digital transmission throughout the simulcast period for that area; and

                     (d)  the national broadcaster does not comply with a direction referred to in paragraph (c); and

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

Return of spectrum at end of simulcast period

             (4)  If, at the end of the simulcast period for a coverage area, a national broadcaster holds one or more transmitter licences that authorised the transmission of the national television broadcasting service concerned in that area, Part A of the national television conversion scheme must make provision for:

                     (a)  requiring the national broadcaster to surrender the licence or licences, with effect from the end of the simulcast period; and

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

Return of spectrum if format and HDTV requirements contravened

             (7)  Part A of the national television conversion scheme must make provision for requiring a national broadcaster to surrender the transmitter licence or licences that authorised the transmission of the national television broadcasting service concerned in digital mode in the coverage area concerned if:

                     (a)  the national broadcaster contravenes:

                              (i)  subclause 35AA(1); or

                             (ii)  a SDTV national television format standard; or

                            (iii)  a HDTV national television format standard; or

                            (iv)  subclause 37F(1); or

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

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

                     (c)  the national broadcaster does not comply with a direction referred to in paragraph (b); and

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

             (8)  Subclause (7) does not prevent the national television conversion scheme from making provision for the issue of a transmitter licence to replace a licence that was surrendered on the grounds of a contravention of a provision or standard mentioned in subparagraph (7)(a)(i), (iii), (iv) or (v). However, the amount of transmission capacity covered by the replacement licence must be less than the amount of transmission capacity covered by the surrendered licence.

Remote coverage areas

           (10)  Part B of the national television conversion scheme may make provision for requiring a national broadcaster to surrender one or more transmitter licences authorising analog transmission or authorising digital transmission if the national broadcaster does not comply with:

                     (a)  a specified requirement of that Part of the scheme; or

                     (b)  subclause 35AA(2); or

                     (c)  a SDTV national television format standard; or

                     (d)  a HDTV national television format standard; or

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

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

        (10A)  Subclause (10) does not prevent the national television conversion scheme from making provision for the issue of a transmitter licence to replace a licence that was surrendered on the grounds of a contravention of the provision mentioned in paragraph (10)(b) or a standard mentioned in paragraph (10)(d), (e) or (f). However, the amount of transmission capacity covered by the replacement licence must be less than the amount of transmission capacity covered by the surrendered licence.

           (11)  Part B of the national television conversion scheme may make provision for the variation of the conditions of a transmitter licence that authorised analog transmission of a national television broadcasting service in a remote coverage area so as to ensure that the licence authorises digital transmission of that service in that area.

24  Amendment of certain plans and guidelines

             (1)  The national television conversion scheme may amend the frequency allotment plan or a licence area plan.

             (2)  The national television conversion scheme may amend technical planning guidelines in force under section 33.

             (3)  Subclauses (1) and (2) do not limit the ACMA’s powers under sections 25, 26 and 33.

25  Reviews and reports

                   The national television conversion scheme may provide for the ACMA to conduct reviews, and report to the Minister, on specified matters.

26  Ancillary or incidental provisions

                   The national television conversion scheme may contain such ancillary or incidental provisions as the ACMA considers appropriate.

27  ACMA to have regard to datacasting allocation power

             (1)  In formulating or varying the national television conversion scheme, the ACMA must have regard to its power under subsection 34(3) (which deals with datacasting allocation).

             (2)  Subclause (1) does not limit the matters to which the ACMA may have regard.

28  ACMA to have regard to special circumstances that apply in remote coverage areas

             (1)  In formulating or varying Part B of the national television conversion scheme, the ACMA must have regard to the special circumstances that apply to the transmission of national television broadcasting services in remote coverage areas.

             (2)  Subclause (1) does not limit the matters to which the ACMA may have regard.

29  Minister may give directions to the ACMA

             (1)  In formulating or varying the national television conversion scheme, the ACMA must comply with any written directions given to it by the Minister under this subclause.

             (2)  A direction under subclause (1) may be of a general or specific nature.

             (3)  The Minister must arrange for a copy of a direction under subclause (1) to be published in the Gazette within 14 days after the direction is given.

30  Variation of scheme

             (1)  The national television conversion scheme may be varied, but not revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

             (2)  Subclause (1) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to other instruments under this Act.

31  Scheme to be a disallowable instrument

                   An instrument under subclause 19(1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

32  Scheme does not take effect until approved by the Minister

                   The national television conversion scheme, or a variation of the scheme, does not take effect unless and until it is approved, in writing, by the Minister.

33  Processes to be public

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

                     (a)  public consultation; and

                     (b)  consultation with national broadcasters; and

                     (c)  consultation with holders of commercial television broadcasting licences; and

                     (e)  consultation with owners and operators of broadcasting transmission towers.

34  Compliance with scheme

                   A national broadcaster must comply with the national television conversion scheme.

35  Simulcasting requirements

             (1)  If there is a simulcast period for a coverage area, a national broadcaster must not broadcast a television program in SDTV digital mode in so much of that coverage area as is not a digital‑only local market area during the simulcast period for that coverage area unless the program is broadcast simultaneously by the national broadcaster in analog mode in so much of that coverage area as is not a digital‑only local market area.

             (2)  Subclause 19(8) applies to this clause in a corresponding way to the way in which it applies to paragraph 19(3)(c) of this Schedule and subclause 19(7) of this Schedule.

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

35A  Certain transmissions to be disregarded

                   For the purposes of clauses 34 and 35, if:

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

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

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

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

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

             (2)  If:

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

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

the national broadcaster must comply with that requirement.

36  Digital transmitter not to be used to provide a subscription television broadcasting service etc.

             (1)  If a national broadcaster holds a transmitter licence that authorises the operation of a transmitter for transmitting national television broadcasting services in digital mode, the national broadcaster must not operate, or permit the operation of, that transmitter to transmit in digital mode:

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

                     (b)  a subscription radio broadcasting service; or

                     (c)  a subscription television broadcasting service; or

                     (d)  a subscription radio narrowcasting service; or

                     (e)  a subscription television narrowcasting service; or

                      (f)  an open narrowcasting radio service; or

                     (g)  an open narrowcasting television service.


 

Part 4Standards and HDTV quotas

Division 2HDTV quotas and standards

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

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

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

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

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

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

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

                     (a)  beginning:

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

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

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

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

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

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

                     (a)  for a calendar year—1040 hours;

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

Prime viewing hours quotas

             (3)  The regulations may determine standards that require commercial television broadcasting licensees to meet specified quotas in relation to the extent to which high‑definition television programs, or specified kinds of high‑definition television programs, are transmitted in HDTV digital mode in prime viewing hours on the HDTV multi‑channelled commercial television broadcasting service provided by the licensee in the licence area.

Application

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

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

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

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

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

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

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

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

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

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

                     (a)  for a calendar year—1040 hours;

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

Prime viewing hours quotas

             (3)  The regulations may determine standards that require national broadcasters to meet specified quotas in relation to the extent to which high‑definition television programs, or specified kinds of high‑definition television programs, are transmitted in HDTV digital mode in prime viewing hours on a designated HDTV multi‑channelled national television broadcasting service.

Application

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

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

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

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

             (1)  The regulations may determine standards that require each commercial television broadcasting licensee to meet specified quotas in relation to the extent to which high‑definition television programs, or specified kinds of high‑definition television programs, are transmitted in HDTV digital mode on the HDTV multi‑channelled commercial television broadcasting service provided by the licensee in the licence area.

Prime viewing hours quotas

             (2)  The regulations may determine standards that require commercial television broadcasting licensees to meet specified quotas in relation to the extent to which high‑definition television programs, or specified kinds of high‑definition television programs, are transmitted in HDTV digital mode in prime viewing hours on the HDTV multi‑channelled commercial television broadcasting service provided by the licensee in the licence area.

Application

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

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

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

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

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

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

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

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

37H  Remote areas—HDTV quotas for national broadcasters

             (1)  The regulations may determine standards that require each national broadcaster to meet specified quotas in relation to the extent to which high‑definition television programs, or specified kinds of high‑definition television programs, are transmitted in HDTV digital mode on a designated HDTV multi‑channelled national television broadcasting service provided by the broadcaster in a coverage area.

Prime viewing hours quotas

             (2)  The regulations may determine standards that require national broadcasters to meet specified quotas in relation to the extent to which high‑definition television programs, or specified kinds of high‑definition television programs, are transmitted in HDTV digital mode in prime viewing hours on a designated HDTV multi‑channelled national television broadcasting service.

Application

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

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

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

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

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

37K  Compliance by national broadcasters

                   A national broadcaster must comply with a standard under this Division that is applicable to the broadcaster.

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

37L  High‑definition television programs

             (1)  For the purposes of the application of this Division to a commercial television broadcasting licensee, a high‑definition television program is:

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

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

                              (i)  it was originally produced in a non‑video format (for example, 16 mm or 35 mm film) that was of equivalent picture quality to a high‑definition digital video format; and

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

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

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

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

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

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

                              (i)  it was originally produced in a non‑video format (for example, 16 mm or 35 mm film) that was of equivalent picture quality to a high‑definition digital video format; and

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

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

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

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

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

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

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

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

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

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

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

                     (a)  the archival material was originally produced:

                              (i)  before 1 July 2003; or

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

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

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

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

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

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

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

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

             (6)  In this clause:

incidental material means:

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

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

                     (c)  community information material or community promotional material; or

                     (d)  a news break or weather bulletin; or

                     (e)  any other similar material.

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

37M  Prime viewing hours

                   For the purposes of this Division, prime viewing hours are the hours:

                     (a)  beginning at 6 pm each day or, if another time is prescribed, beginning at that prescribed time each day; and

                     (b)  ending at 10.30 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.


 

Division 3Captioning

38  Captioning [see Note 2]

Basic rules

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

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

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

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

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

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

             (4)  If:

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

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

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

                     (c)  the licensee provides:

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

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

                            in the licence area;

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

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

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

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

          (4A)  If:

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

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

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

                     (d)  the licensee provides:

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

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

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

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

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

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

          (4B)  If:

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

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

                     (c)  the licensee provides in the licence area:

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

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

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

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

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

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

             (5)  If:

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

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

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

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

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

unless:

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

                              (i)  provided by the national broadcaster; and

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

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

          (5A)  If:

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

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

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

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

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

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

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

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

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

             (7)  Subclause (1) does not require the provision of a captioning service for:

                     (a)  a television program, or a part of a television program, that is wholly in a language other than English; or

                     (b)  a television program, or a part of a television program, the audio component of which consists only of music that has no human vocal content that is recognisable as being in the English language; or

                     (c)  so much of the audio component of a television program as consists of incidental or background music.

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

Special rules

             (9)  If:

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

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

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

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

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

                            in the licence area; and

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

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

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

          (9A)  If:

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

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

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

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

                            in the licence area; and

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

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

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

           (10)  If:

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

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

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

                            in a coverage area; and

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

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

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

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

        (10B)  If:

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

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

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

                            in a satellite delivery area; and

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

                     (c)  the program is transmitted before the end of the final digital television switch‑over day; and

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

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

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

Prime viewing hours

           (11)  For the purposes of subclause (1), prime viewing hours are the hours:

                     (a)  beginning at 6 pm each day or, if another time is prescribed, beginning at that prescribed time each day; and

                     (b)  ending at 10.30 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

Definition

           (12)  In this clause:

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

SDTV multi‑channelled commercial television broadcasting services

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

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

                     (b)  paragraph (4)(d);

                     (c)  subparagraph (9)(b)(i).


 

Division 5Miscellaneous

41  Standards may incorporate other instruments

                   Section 589 of the Telecommunications Act 1997 applies to regulations made for the purposes of this Part in a corresponding way to the way in which it applies to an instrument under that Act.


 

Part 4ARestrictions on televising anti‑siphoning events

Division 1Commercial television broadcasting services

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

Scope

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

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

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

Televising the whole of an anti‑siphoning event

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

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

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

                              (i)  the core commercial television broadcasting service; and

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

Televising a part of an anti‑siphoning event

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

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

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

                              (i)  the core commercial television broadcasting service; and

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

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

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

Licences allocated under section 38C

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

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

Scope

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

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

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

                     (c)  during that period, the licensee provides:

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

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

Televising the whole of an anti‑siphoning event

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

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

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

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

                             (ii)  the secondary commercial television broadcasting service.

Televising a part of an anti‑siphoning event

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

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

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

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

                             (ii)  the secondary commercial television broadcasting service; or

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

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

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

Licences allocated under section 38C

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

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

Scope

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

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

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

Televising the whole of an anti‑siphoning event

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

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

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

                              (i)  the core commercial television broadcasting service; and

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

Televising a part of an anti‑siphoning event

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

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

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

                              (i)  the core commercial television broadcasting service; and

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

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

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

Licences allocated under section 38C

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

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

Scope

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

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

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

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

Televising the whole of an anti‑siphoning event

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

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

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

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

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

Televising a part of an anti‑siphoning event

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

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

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

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

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

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

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

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

Licences allocated under section 38C

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

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

Scope

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

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

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

Televising the whole of an anti‑siphoning event

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

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

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

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

                             (ii)  the secondary commercial television broadcasting service.

Televising a part of an anti‑siphoning event

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

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

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

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

                             (ii)  the secondary commercial television broadcasting service; or

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

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

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

Licences allocated under section 38C

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

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

Scope

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

Televising the whole of an anti‑siphoning event

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

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

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

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

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

Televising a part of an anti‑siphoning event

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

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

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

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

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

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

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

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

Licences allocated under section 38C

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

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

Scope

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

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

                     (b)  the licensee provides:

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

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

Televising the whole of an anti‑siphoning event

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

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

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

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

                             (ii)  the secondary commercial television broadcasting service.

Televising a part of an anti‑siphoning event

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

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

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

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

                             (ii)  the secondary commercial television broadcasting service; or

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

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

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

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

Scope

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

Televising the whole of an anti‑siphoning event

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

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

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

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

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

Televising a part of an anti‑siphoning event

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

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

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

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

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

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

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

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

41G  Primary commercial television broadcasting service

Service provided during the simulcast period etc.

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

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

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

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

                             (ii)  the commencement of this subclause; and

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

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

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

Service provided after the end of the simulcast period etc.

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

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

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

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

Service provided under a section 38C licence

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

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

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

Definition

             (7)  In this clause:

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


 

Division 2National television broadcasting services

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

Scope

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

Televising the whole of an anti‑siphoning event

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

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

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

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

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

Televising a part of an anti‑siphoning event

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

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

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

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

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

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

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

National television broadcasting services provided with the use of a satellite

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

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

Scope

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

Televising the whole of an anti‑siphoning event

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

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

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

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

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

Televising a part of an anti‑siphoning event

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

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

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

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

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

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

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

National television broadcasting services provided with the use of a satellite

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

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

Scope

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

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

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

Televising the whole of an anti‑siphoning event

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

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

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

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

                             (ii)  the secondary national television broadcasting service.

Televising a part of an anti‑siphoning event

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

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

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

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

                             (ii)  the secondary national television broadcasting service; or

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

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

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

National television broadcasting services provided with the use of a satellite

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

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

Scope

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

Televising the whole of an anti‑siphoning event

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

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

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

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

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

Televising a part of an anti‑siphoning event

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

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

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

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

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

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

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

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

National television broadcasting services provided with the use of a satellite

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

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

Scope

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

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

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

Televising the whole of an anti‑siphoning event

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

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

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

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

                             (ii)  the secondary national television broadcasting service.

Televising a part of an anti‑siphoning event

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

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

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

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

                             (ii)  the secondary national television broadcasting service; or

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

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

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

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

Scope

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

Televising the whole of an anti‑siphoning event

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

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

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

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

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

Televising a part of an anti‑siphoning event

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

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

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

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

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

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

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

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

41M  Primary national television broadcasting service

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

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

41N  Primary satellite national television broadcasting service

Primary national television broadcasting service

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

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

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

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


 

Part 5Transmitter access regime

  

42  Simplified outline

                   The following is a simplified outline of this Part:

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

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

              (b)     a national broadcaster;

       with access to the tower or facility.

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

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

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

              (b)     a national broadcaster;

       with access to the site of the tower.

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

43  Definitions

                   In this Part:

ACCC means the Australian Competition and Consumer Commission.

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

datacaster means a person who holds a datacasting transmitter licence.

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

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

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

site means:

                     (a)  land; or

                     (b)  a building on land; or

                     (c)  a structure on land.

43A  Designated associated facilities

                   For the purposes of this Part, a designated associated facility means any of the following facilities:

                     (a)  an antenna;

                     (b)  a combiner;

                     (c)  a feeder system;

                     (d)  a facility of a kind specified in the regulations;

where:

                     (e)  the facility is, or is to be, associated with a transmitter; and

                      (f)  the facility is used, or capable of being used, in connection with:

                              (i)  the transmission of a television broadcasting service in digital mode; or

                             (ii)  the provision of datacasting services in digital mode.

44  Extended meaning of access

             (1)  For the purposes of this Part, giving access to a tower includes replacing the tower with another tower located on the same site and giving access to the replacement tower.

             (2)  For the purposes of this Part, giving access to a site on which is situated a tower includes replacing the tower with another tower located on the site.

             (3)  For the purposes of this Part, giving access to a designated associated facility includes:

                     (a)  replacing the facility with another facility located on the same site and giving access to the replacement facility; or

                     (b)  giving access to a service provided by means of the designated associated facility.

45  Access to broadcasting transmission towers

Television broadcasting services in digital mode

             (1)  The owner or operator of a broadcasting transmission tower must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also the access seeker), give the access seeker access to the tower.

             (2)  The owner or operator of the broadcasting transmission tower is not required to comply with subclause (1) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service or services in digital mode; and

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

Datacasting services in digital mode

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

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

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

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

Compliance not technically feasible

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

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

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

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

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

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

                             (ii)  making alterations to the tower; and

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

Issue of certificate

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

45A  Access to designated associated facilities

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

                     (a)  a broadcasting transmission tower; or

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

Television broadcasting services in digital mode

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

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

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

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

Datacasting services in digital mode

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

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

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

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

Compliance not technically feasible

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

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

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

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

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

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

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

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

Issue of certificate

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

Exemptions

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

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

46  Access to sites of broadcasting transmission towers

Television broadcasting services in digital mode

             (1)  The owner or operator of a broadcasting transmission tower must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also the access seeker), give the access seeker access to a site if:

                     (a)  the tower is situated on the site; and

                     (b)  either:

                              (i)  the site is owned, occupied or controlled by the owner or operator of the tower; or

                             (ii)  the owner or operator of the tower has a right (either conditional or unconditional) to use the site.

             (2)  The owner or operator of the broadcasting transmission tower is not required to comply with subclause (1) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service or services in digital mode; and

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

Datacasting services in digital mode

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

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

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

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

Compliance not technically feasible

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

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

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

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

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

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

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

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

Issue of certificate

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

47  Terms and conditions of access

Access to towers

             (1)  The owner or operator of a broadcasting transmission tower must comply with subclause 45(1) or (3) on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the owner or operator;

                             (ii)  the access seeker (within the meaning of that subclause); or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

Access to designated associated facilities

          (1A)  The owner or operator of a designated associated facility must comply with subclause 45A(2) or (4) on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the owner or operator;

                             (ii)  the access seeker (within the meaning of that subclause); or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

Access to sites

             (2)  The owner or operator of a broadcasting transmission tower must comply with subclause 46(1) or (3) on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the owner or operator;

                             (ii)  the access seeker (within the meaning of that subclause); or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

Conduct of arbitration

             (3)  The regulations may make provision for and in relation to the conduct of an arbitration under this clause.

             (4)  The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chair of the ACCC.

             (5)  Subclause (4) does not, by implication, limit subclause (3).

48  Code relating to access

             (1)  The ACCC may, by written instrument, make a Code setting out conditions that are to be complied with in relation to the provision of access under this Part.

             (2)  Before making an instrument under subclause (1), the ACCC must consult:

                     (a)  commercial television broadcasting licensees; and

                     (b)  national broadcasters; and

                     (c)  owners and operators of broadcasting transmission towers.

             (3)  An access seeker must comply with the Code.

             (4)  The owner or operator of a broadcasting transmission tower must comply with the Code, to the extent to which the Code relates to the provision of access under clause 45 or 46.

          (4A)  The owner or operator of a designated associated facility must comply with the Code, to the extent to which the Code relates to the provision of access under clause 45A.

             (5)  An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

49  Arbitration—acquisition of property

             (1)  This clause applies to a provision of this Part that authorises the conduct of an arbitration (whether by the ACCC or another person).

             (2)  The provision has no effect to the extent (if any) to which it purports to authorise the acquisition of property if that acquisition:

                     (a)  is otherwise than on just terms; and

                     (b)  would be invalid because of paragraph 51(xxxi) of the Constitution.

             (3)  In this clause:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

50  Relationship between this Part and the National Transmission Network Sale Act 1998

                   Part 3 of the National Transmission Network Sale Act 1998 does not apply in relation to an access seeker seeking access to a broadcasting transmission tower or a site to the extent to which this Part applies in relation to the access seeker seeking access to that tower or site.


 

Part 6Collection of datacasting charge

  

51  Collection of datacasting charge

Definitions

             (1)  In this clause:

charge means charge imposed by the Datacasting Charge (Imposition) Act 1998.

late payment penalty means an amount that is payable by way of penalty in accordance with a determination under subclause (3).

When charge due and payable

             (2)  Charge is due and payable at the time ascertained in accordance with a written determination made by the ACMA.

Late payment penalty

             (3)  The ACMA may, by written instrument, determine that, if any charge payable by a person remains unpaid after the time when it became due for payment, the person is liable to pay to the Commonwealth, by way of penalty, an amount calculated at the rate of:

                     (a)  20% per annum; or

                     (b)  if the determination specifies a lower percentage—that lower percentage per annum;

on the amount unpaid, computed from that time.

Determination has effect

             (4)  A determination under subclause (3) has effect accordingly.

Remission of penalty

             (5)  A determination under subclause (3) may authorise the ACMA to make decisions about the remission of the whole or a part of an amount of late payment penalty.

Payment of charge and late payment penalty

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

Recovery of charge and penalty

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

Payments to the Commonwealth

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

Disallowable instrument

             (9)  A determination under subclause (2) or (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

52  Cancellation of certain exemptions from datacasting charge

             (1)  This clause cancels the effect of a provision of another Act that would have the effect of exempting a person from liability to pay charge imposed by the Datacasting Charge (Imposition) Act 1998.

             (2)  The cancellation does not apply if the provision of the other Act is enacted after the commencement of this clause and refers specifically to charge imposed by the Datacasting Charge (Imposition) Act 1998.


 

Part 7Injunctions

  

54  Injunctions

Restraining injunctions

             (1)  If:

                     (a)  the holder of a commercial television broadcasting licence has, in accordance with the commercial television conversion scheme, given an implementation plan to the ACMA; and

                     (b)  the ACMA has approved the implementation plan; and

                     (c)  the holder has engaged, is engaging or is proposing to engage in any conduct in contravention of the implementation plan;

the Federal Court may, on the application of the ACMA, grant an injunction:

                     (d)  restraining the holder from engaging in the conduct; and

                     (e)  if, in the court’s opinion, it is desirable to do so—requiring the holder to do something.

             (2)  If a person has engaged, is engaging or is proposing to engage in any conduct in contravention of Part 5 of this Schedule, the Federal Court may, on the application of the ACMA or of the access seeker referred to in that Part, grant an injunction:

                     (a)  restraining the person from engaging in the conduct; and

                     (b)  if, in the court’s opinion, it is desirable to do so—requiring the person to do something.

Performance injunctions

             (3)  If:

                     (a)  the holder of a commercial television broadcasting licence has, in accordance with the commercial television conversion scheme, given an implementation plan to the ACMA; and

                     (b)  the ACMA has approved the implementation plan; and

                     (c)  the holder has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and

                     (d)  the refusal or failure was, is or would be a contravention of the implementation plan;

the Federal Court may, on the application of the ACMA, grant an injunction requiring the holder to do that act or thing.

             (4)  If:

                     (a)  a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and

                     (b)  the refusal or failure was, is or would be a contravention of Part 5 of this Schedule;

the Federal Court may, on the application of the ACMA or of the access seeker referred to in that Part, grant an injunction requiring the person to do that act or thing.

55  Interim injunctions

Grant of interim injunction

             (1)  If an application is made to the court for an injunction under clause 54, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that clause.

No undertakings as to damages

             (2)  The court is not to require an applicant for an injunction under clause 54, as a condition of granting an interim injunction, to give any undertakings as to damages.

56  Discharge etc. of injunctions

                   The court may discharge or vary an injunction granted under this Part.

57  Certain limits on granting injunctions not to apply

Restraining injunctions

             (1)  The power of the court under this Part to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

                     (a)  if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

Performance injunctions

             (2)  The power of the court under this Part to grant an injunction requiring a person to do an act or thing may be exercised:

                     (a)  if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

                     (b)  if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.

58  Other powers of the court unaffected

                   The powers conferred on the court under this Part are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.


 

Part 8Reviews

  

60B  Review before 1 January 2006

             (1)  Before 1 January 2006, the Minister must cause to be conducted a review of the content of any regulations made for the purposes of paragraph 6(3)(c) of this Schedule (which deals with the duration of the simulcast period).

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

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

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

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

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

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

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

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

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

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

                            should be amended.

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

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

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

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

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

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

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

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

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