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Broadcasting Services Act 1992

Authoritative Version
  • - C2013C00005
  • In force - Superseded Version
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Act No. 110 of 1992 as amended, taking into account amendments up to Australian Charities and Not-for-profits Commission (Consequential and Transitional) Act 2012
An Act relating to broadcasting services, datacasting services, online services and content services, and for related purposes
Administered by: Broadband, Communications and the Digital Economy
Registered 03 Jan 2013
Start Date 01 Jan 2013
End Date 30 Mar 2013
Table of contents.
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Collapse Volume 1Volume 1
Collapse Part 1—PreliminaryPart 1—Preliminary
1 Short title [see Note 1]
2 Commencement [see Note 1]
3 Objects of this Act
4 Regulatory policy
5 Role of the ACMA
6 Interpretation
7 Interpretation—meaning of control
8 Interpretation—shareholding interests, voting interests, dividend interests and winding-up interests
8A Captioning taken to be part of program
8AA Designated community radio broadcasting licence
8AB Digital program enhancement content taken to be a radio program
8AC Digital radio start-up day
8AD Deemed radio broadcasting licence areas
8AE Final digital television switch-over day
8AF Regional racing service radio licence
8B Remote Indigenous community
9 Act to bind the Crown
10 Extension of Act to the external Territories
10A Application of the Criminal Code
Expand Part 2—Categories of broadcasting servicesPart 2—Categories of broadcasting services
Expand Part 3—Planning of the broadcasting services bandsPart 3—Planning of the broadcasting services bands
Expand Part 4—Commercial television broadcasting licences and commercial radio broadcasting licencesPart 4—Commercial television broadcasting licences and commercial radio broadcasting licences
Expand Part 5—Control of commercial broadcasting licences and datacasting transmitter licencesPart 5—Control of commercial broadcasting licences and datacasting transmitter licences
Expand Part 6—Community broadcasting licencesPart 6—Community broadcasting licences
Expand Part 6A—Temporary community broadcasting licencesPart 6A—Temporary community broadcasting licences
Expand Part 7—Subscription television broadcasting servicesPart 7—Subscription television broadcasting services
Expand Part 8—Subscription broadcasting and narrowcasting class licencesPart 8—Subscription broadcasting and narrowcasting class licences
Expand Part 8A—Restrictions on subscription television broadcasting services in regional areas etc.Part 8A—Restrictions on subscription television broadcasting services in regional areas etc.
Expand Part 8B—International broadcasting licencesPart 8B—International broadcasting licences
Expand Part 9—Program standardsPart 9—Program standards
Expand Part 9A—Technical standardsPart 9A—Technical standards
Expand Part 9B—Industry codes and industry standardsPart 9B—Industry codes and industry standards
Expand Part 9C—Access to commercial television broadcasting services provided with the use of a satellitePart 9C—Access to commercial television broadcasting services provided with the use of a satellite
Expand Part 9D—CaptioningPart 9D—Captioning
Expand Part 10—Remedies for breaches of licensing provisionsPart 10—Remedies for breaches of licensing provisions
Expand Part 10A—Anti-hoarding rulesPart 10A—Anti-hoarding rules
Expand Part 11—Complaints to the ACMAPart 11—Complaints to the ACMA
Expand Part 13—Information gathering by the ACMAPart 13—Information gathering by the ACMA
Expand Part 14—Appeals to the Administrative Appeals TribunalPart 14—Appeals to the Administrative Appeals Tribunal
Expand Part 14A—Accounts and payment of licence feesPart 14A—Accounts and payment of licence fees
Expand Part 14B—Civil penaltiesPart 14B—Civil penalties
Expand Part 14C—InjunctionsPart 14C—Injunctions
Expand Part 14D—Enforceable undertakingsPart 14D—Enforceable undertakings
Expand Part 14E—Infringement noticesPart 14E—Infringement notices
Expand Part 15—MiscellaneousPart 15—Miscellaneous
Schedule 1—Control and ownership of company interests
Expand Part 1—IntroductionPart 1—Introduction
Expand Part 2—When person is in a position to exercise controlPart 2—When person is in a position to exercise control
Expand Part 3—Deemed controlPart 3—Deemed control
Expand Part 4—Tracing of ownershipPart 4—Tracing of ownership
Schedule 2—Standard conditions
Expand Part 1—InterpretationPart 1—Interpretation
Expand Part 2—Special conditionsPart 2—Special conditions
Expand Part 3—Commercial television broadcasting licencesPart 3—Commercial television broadcasting licences
Expand Part 4—Commercial radio broadcasting licencesPart 4—Commercial radio broadcasting licences
Expand Part 5—Community broadcasting licencesPart 5—Community broadcasting licences
Expand Part 6—Subscription television broadcasting licencesPart 6—Subscription television broadcasting licences
Expand Part 7—Services provided under class licencesPart 7—Services provided under class licences
Expand Volume 2Volume 2

Broadcasting Services Act 1992

Act No. 110 of 1992 as amended

This compilation was prepared on 2 January 2013
taking into account amendments up to Act No. 169 of 2012

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

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

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

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

Prepared by the Office of Parliamentary Counsel, Canberra

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

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

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

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

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

5............ Role of the ACMA............................................................................. 4

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

7............ Interpretation—meaning of control................................................... 18

8............ Interpretation—shareholding interests, voting interests, dividend interests and winding‑up interests      18

8A......... Captioning taken to be part of program............................................. 20

8AA...... Designated community radio broadcasting licence............................ 20

8AB...... Digital program enhancement content taken to be a radio program... 20

8AC...... Digital radio start‑up day................................................................... 21

8AD...... Deemed radio broadcasting licence areas.......................................... 23

8AE....... Final digital television switch‑over day............................................. 24

8AF....... Regional racing service radio licence................................................. 25

8B......... Remote Indigenous community......................................................... 26

9............ Act to bind the Crown....................................................................... 26

10.......... Extension of Act to the external Territories....................................... 26

10A....... Application of the Criminal Code..................................................... 26

Part 2—Categories of broadcasting services                                                       27

11.......... Categories of broadcasting services.................................................. 27

11A....... Dual categorisation of international broadcasting services................ 27

12.......... Method of regulating particular services........................................... 27

13.......... National broadcasting services.......................................................... 28

14.......... Commercial broadcasting services.................................................... 29

15.......... Community broadcasting services..................................................... 29

16.......... Subscription broadcasting services................................................... 30

17.......... Subscription narrowcasting services................................................. 30

18.......... Open narrowcasting services............................................................ 30

18A....... International broadcasting services.................................................... 31

19.......... ACMA may determine additional criteria or clarify existing criteria. 32

20.......... Determinations and clarifications to be disallowable by the Parliament 33

21.......... Requests to ACMA to decide which category a broadcasting service falls into       33

22.......... Matters to be considered by ACMA................................................. 35

Part 3—Planning of the broadcasting services bands                                   36

23.......... Planning criteria................................................................................ 36

24.......... ACMA to determine priorities.......................................................... 36

25.......... Preparation of frequency allotment plans.......................................... 37

26.......... Preparation of licence area plans....................................................... 38

26A....... Licence area plans—multi‑channelled commercial television broadcasting services 42

26AA.... Compliance with television licence area plan..................................... 43

26B....... Licence area plans—multi‑channelled national television broadcasting services       44

26C....... Licence area plans not required to deal with certain digital radio broadcasting services            45

26D....... Licence area plans—how digital radio broadcasting services may be dealt with       46

27.......... Processes to be public....................................................................... 46

29.......... Designation of licence areas.............................................................. 48

30.......... ACMA may determine population figures........................................ 48

31.......... Minister may reserve capacity for national broadcasters or community broadcasters               48

32.......... Reservations to be disallowable by the Parliament............................ 49

33.......... Development of technical planning guidelines.................................. 49

34.......... Alternative uses of broadcasting services bands............................... 49

35.......... Notification of decisions under this Part........................................... 51

35A....... Reviews relating to the uses of broadcasting services bands spectrum 51

Part 4—Commercial television broadcasting licences and commercial radio broadcasting licences      54

Division 1—Allocation of licences                                                                        54

35B....... Allocation of new commercial television broadcasting licences........ 54

35C....... Digital radio moratorium................................................................... 54

35D....... Exception to the digital radio moratorium—failure to provide a digital commercial radio broadcasting service        55

36.......... ACMA to determine system for allocating licences.......................... 56

36A....... Commercial radio broadcasting licences to provide analog or digital commercial radio broadcasting services         57

37.......... When licences must not be allocated................................................. 58

38.......... ACMA to advertise for applications for certain licences................... 58

38A....... Additional commercial television licences in single markets............. 59

38B....... Additional commercial television licences in 2‑station markets......... 61

38C....... Commercial television broadcasting licences—services provided with the use of a satellite     67

39.......... Additional commercial radio licences in single markets.................... 74

40.......... Allocation of other licences............................................................... 76

41.......... When persons are regarded as suitable.............................................. 79

Division 2—Services authorised by licences                                                   80

41A....... Services authorised by commercial television broadcasting licences before 1 January 2009    80

41B....... Services authorised by commercial television broadcasting licences during so much of the simulcast period etc. as occurs on or after 1 January 2009................................................................ 81

41C....... Services authorised by commercial television broadcasting licences after the end of the simulcast period etc.         87

41CA.... Services authorised by commercial television broadcasting licences allocated under section 38C            88

41D....... Services authorised by commercial radio broadcasting licences........ 93

Division 3—Licence conditions                                                                              95

42.......... Conditions of commercial broadcasting licences............................... 95

43.......... ACMA may impose additional conditions........................................ 95

43A....... Material of local significance—regional aggregated commercial television broadcasting licences            96

43AA.... Local news to be provided to section 38C licensees by regional commercial television broadcasting licensees       97

43AB.... Commercial television programs to be provided to section 38C licensees by metropolitan commercial television broadcasting licensees..................................................................... 100

43AC.... Commercial television programs to be provided to section 38C licensees by remote terrestrial licensees 101

43AD.... Compensation for acquisition of property....................................... 103

43B....... Local presence—regional commercial radio broadcasting licences.. 104

43C....... Local content—regional commercial radio broadcasting licences.... 105

43D....... Special licence conditions relating to digital radio commercial broadcasting services               108

44.......... Matters to which conditions may relate........................................... 111

Division 4—General provisions                                                                          112

45.......... Duration of licences........................................................................ 112

46.......... Applications for renewal................................................................. 112

47.......... ACMA to renew licences unless it is aware of special circumstances 112

48.......... Transfer of commercial broadcasting licences................................. 113

49.......... Surrender of commercial broadcasting licences............................... 113

Part 5—Control of commercial broadcasting licences and datacasting transmitter licences       114

Division 1—Preliminary                                                                                          114

50A....... This Part does not apply in relation to licences allocated under section 38C or subsection 40(1)             114

50.......... Interpretation—knowledge of company.......................................... 114

51.......... Means of dealing with overlapping licence areas............................ 114

51A....... This Part does not apply to certain channel B datacasting transmitter licences          114

52.......... Changes in licence area populations not to put persons in breach of this Part          115

52A....... Newspapers—additional constitutional basis.................................. 115

Division 2—Limitation on control                                                                     116

Subdivision A—Commercial broadcasting licences                                     116

53.......... Limitation on control of commercial television broadcasting licences 116

54.......... Limitation on control of commercial radio broadcasting licences.... 116

Subdivision B—Commercial television broadcasting licences and datacasting transmitter licences      116

54A....... Limitation on control of commercial television broadcasting licences and datacasting transmitter licences               116

Subdivision C—Commercial radio broadcasting licences and restricted datacasting licences 117

54B....... Limitation on control of commercial radio broadcasting licences and restricted datacasting licences during the digital radio moratorium period........................................................................... 117

Division 3—Limitation on directorships                                                         118

Subdivision A—Television and radio                                                               118

55.......... Limitation on numbers of directorships—television........................ 118

56.......... Limitation on numbers of directorships—radio............................... 119

Subdivision B—Television and datacasting                                                    119

56A....... Limitation on directorships—television and datacasting.................. 119

Division 5—Newspapers associated with licence areas                          120

59.......... Newspapers associated with commercial television or radio broadcasting licence areas           120

Division 5A—Media diversity                                                                              122

Subdivision A—Introduction                                                                               122

61AA.... Definitions...................................................................................... 122

61AB.... Unacceptable media diversity situation............................................ 124

61AC.... Points.............................................................................................. 124

61AD.... Statutory control rules..................................................................... 127

61AE..... Shared content test.......................................................................... 127

61AEA.. Unacceptable 3‑way control situation.............................................. 128

61AF..... Overlapping licence areas................................................................ 128

Subdivision B—Prohibition of transactions that result in an unacceptable media diversity situation coming into existence etc.                                                                               128

61AG.... Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—offence........................................................................................................ 128

61AH.... Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—civil penalty........................................................................................................ 129

61AJ..... Prior approval of transactions that result in an unacceptable media diversity situation coming into existence etc.    130

61AK.... Extension of time for compliance with prior approval notice.......... 131

61AL..... Breach of prior approval notice—offence....................................... 132

61AM... Breach of prior approval notice—civil penalty................................ 133

Subdivision BA—Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence etc.                                                                               133

61AMA Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence—offence  133

61AMB. Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence—civil penalty........................................................................................................ 134

61AMC. Prior approval of transactions that result in an unacceptable 3‑way control situation coming into existence etc.      134

61AMD Extension of time for compliance with prior approval notice.......... 136

61AME. Breach of prior approval notice—offence....................................... 137

61AMF. Breach of prior approval notice—civil penalty................................ 137

Subdivision C—Remedial directions                                                                 137

61AN.... Remedial directions—unacceptable media diversity situation.......... 137

61ANA. Remedial directions—unacceptable 3‑way control situation............ 140

61AP..... Extension of time for compliance with remedial direction............... 142

61AQ.... Breach of remedial direction—offence............................................ 143

61AR.... Breach of remedial direction—civil penalty..................................... 143

Subdivision D—Enforceable undertakings                                                     144

61AS..... Acceptance of undertakings............................................................ 144

61AT..... Enforcement of undertakings.......................................................... 144

Subdivision E—Register of Controlled Media Groups                                145

61AU.... Register of Controlled Media Groups............................................. 145

61AV.... How a media group is to be entered in the Register........................ 145

61AW... Explanatory notes may be included in the Register......................... 146

61AX.... Continuity of media group.............................................................. 146

61AY.... Initial registration of media groups.................................................. 146

61AZ..... Registration of newly‑formed media group..................................... 147

61AZA.. De‑registration of media group that has ceased to exist................... 150

61AZB.. Registration of change of controller of registered media group....... 151

61AZC.. Registration of change of composition of media group................... 151

61AZCA........................ ACMA must deal with notifications in order of receipt  152

61AZD.. Conditional transactions.................................................................. 152

61AZE.. Review and confirmation of entries and alterations etc.................... 154

61AZF.. Reconsideration of decisions........................................................... 156

61AZG.. Corrections of clerical errors or obvious defects............................. 158

61AZH.. Regulations..................................................................................... 158

Division 5B—Disclosure of cross‑media relationships                            159

61BA.... Definitions...................................................................................... 159

61BB..... Disclosure of cross‑media relationship by commercial television broadcasting licensee          159

61BC..... Choice of disclosure method—commercial radio broadcasting licensee 161

61BD.... Disclosure of cross‑media relationship by commercial radio broadcasting licensee—business affairs disclosure method........................................................................................................ 162

61BE..... Disclosure of cross‑media relationship by commercial radio broadcasting licensee—regular disclosure method     163

61BF..... Disclosure of cross‑media relationship by publisher of newspaper 164

61BG.... Exception—political communication............................................... 166

61BH.... Matter or material about the business affairs of a broadcasting licensee or newspaper publisher             166

Division 5C—Local news and information requirements for regional commercial radio broadcasting licensees                                                                                                 169

Subdivision A—Introduction                                                                               169

61CA.... Definitions...................................................................................... 169

61CAA. This Division does not apply in relation to certain licences............. 171

61CB..... Trigger event................................................................................... 171

61CC..... What is local?.................................................................................. 173

Subdivision B—Minimum service standards for local news and information               174

61CD.... Licensee must meet minimum service standards for local news and information     174

61CE..... Minimum service standards for local news and information........... 175

Subdivision C—Local content plans                                                                  177

61CF..... Licensee must submit draft local content plan to the ACMA.......... 177

61CG.... Content of draft or approved local content plan............................... 178

61CH.... Approval of draft local content plan................................................ 178

61CJ...... Register of approved local content plans......................................... 179

61CK..... Approved local content plan must be varied if minimum service standards are imposed or increased      179

61CL..... Approved local content plan may be varied by the licensee............. 180

61CM.... Approval of draft variation.............................................................. 180

61CN.... ACMA may review approved local content plan............................ 181

61CP..... Compliance with approved local content plan................................. 181

61CPA.. Licensee must submit annual compliance report.............................. 181

61CQ.... Minister may direct the ACMA about the exercise of its powers.... 182

Subdivision D—Other local content requirements                                        182

61CR..... Minister may direct the ACMA to conduct an investigation about other local content requirements        182

61CS..... Minister may direct the ACMA to impose licence conditions relating to local content             183

61CT..... Regular reviews of local content requirements................................ 183

Division 6—Notification provisions                                                                  185

62.......... Requirement to notify control and directorships.............................. 185

63.......... Requirement to notify changes in control........................................ 186

64.......... Person who obtains control of a licence or newspaper must notify the ACMA       188

65.......... Requirement to notify control and directorships as at 1 February 2007 189

65A....... Strict liability offences..................................................................... 191

65B....... Designated infringement notice provisions..................................... 191

Division 7—Approval of temporary breaches                                            192

66.......... Offence for breaches without approval........................................... 192

67.......... Applications for prior approval of temporary breaches................... 193

68.......... Extension of time for compliance with notice.................................. 194

69.......... Breach of notice under section 67 to constitute an offence.............. 195

Division 8—Action by the ACMA                                                                      196

70.......... Notices by the ACMA.................................................................... 196

71.......... Extension of time for compliance with notice.................................. 197

72.......... Breach of notice under section 70 to constitute an offence.............. 198

Division 9—Special provision for small markets                                       199

73.......... Additional licence under section 38A not to result in breach of ownership limits    199

73A....... Additional licence allocated under section 38B not to result in breach of control rules             199

Division 10—Prior opinions by the ACMA                                                  200

74.......... Requests to ACMA to give an opinion on whether a person is in a position to control a licence, a newspaper or a company.......................................................................................... 200

Division 11—Miscellaneous                                                                                   202

75.......... Register of matters under this Part.................................................. 202

76.......... Continuing offences........................................................................ 202

77.......... Part has effect notwithstanding Competition and Consumer Act.... 202

78.......... Part not to invalidate appointments.................................................. 203

Part 6—Community broadcasting licences                                                        204

79.......... Interpretation................................................................................... 204

79A....... Application...................................................................................... 204

80.......... ACMA to advertise for applications for BSB community broadcasting licences     204

81.......... When licences must not be allocated............................................... 205

82.......... Other community broadcasting licences.......................................... 205

83.......... When persons are regarded as suitable............................................ 205

84.......... Allocation of community broadcasting licences.............................. 206

84A....... Designated community radio broadcasting licences to provide analog or digital services         207

85.......... ACMA not required to allocate community broadcasting licence to any applicant   208

85A....... Services authorised by designated community radio broadcasting licences              208

86.......... Conditions of community broadcasting licences............................. 210

87.......... ACMA may impose additional conditions on community broadcasting licences     210

87A....... Additional conditions on CTV licences........................................... 211

87B....... Special licence condition relating to digital community radio broadcasting services 213

88.......... Matters to which conditions may relate........................................... 213

89.......... Duration of community broadcasting licences................................. 214

90.......... Applications for renewal of community broadcasting licences........ 214

91.......... ACMA may renew community broadcasting licences.................... 215

91A....... Transfer of community broadcasting licences................................. 216

92.......... Surrender of community broadcasting licences............................... 218

Part 6A—Temporary community broadcasting licences                           219

92A....... Interpretation................................................................................... 219

92B....... Temporary community broadcasting licences.................................. 219

92C....... Applicants for temporary community broadcasting licences........... 219

92D....... When applicants and licensees are regarded as suitable................... 220

92E........ Criteria for deciding whether to allocate a licence............................ 221

92F........ Licences to accord with alternative planning procedures................. 221

92G....... Licence area, timing conditions and licence period.......................... 222

92H....... Conditions of temporary community broadcasting licences............ 222

92J........ ACMA may vary conditions or periods, or impose new conditions 222

92K....... Duration of temporary community broadcasting licences................ 223

92L........ Surrender of temporary community broadcasting licences.............. 223

Part 7—Subscription television broadcasting services                                224

Division 1—Allocation of subscription television broadcasting licences               224

95.......... When subscription television broadcasting licence must not be allocated 224

96.......... Allocation of other subscription television broadcasting licences.... 224

97.......... Requests to Australian Competition and Consumer Commission... 225

98.......... Suitability for allocation of licence.................................................. 225

98D....... Compensation................................................................................. 226

Division 2—Conditions of subscription television broadcasting licence                228

99.......... Conditions applicable to subscription television broadcasting licence 228

100........ Matters to which conditions may relate........................................... 228

Division 2A—Eligible drama expenditure                                                     230

Subdivision A—Introduction                                                                               230

103A..... Simplified outline............................................................................ 230

103B..... Definitions...................................................................................... 231

103C..... Channel providers........................................................................... 234

103D..... Part‑channel providers.................................................................... 234

103E...... Pass‑through providers................................................................... 235

103F...... Part‑pass‑through providers............................................................ 235

103G..... Supply of channel or package......................................................... 236

103H..... Non‑designated pre‑production expenditure not to be counted unless principal photography has commenced        236

103J...... Cash‑based accounting—when expenditure is incurred.................. 236

103JA... When designated script development expenditure is incurred in relation to an eligible drama program etc.              237

103K..... When expenditure incurred on a new eligible drama program......... 239

103L...... ACMA may make determinations about what constitutes program expenditure      240

103M.... Expenditure to be nominated only once in meeting licence conditions 241

Subdivision B—Channel provider supplies channel                                     242

103N..... 10% minimum eligible drama expenditure—channel provider supplies channel      242

103NA.. Carry‑forward eligible drama expenditure....................................... 244

103P...... Shortfall of eligible drama expenditure—channel provider supplies channel exclusively to licensee        244

103Q..... Shortfall of eligible drama expenditure—channel provider supplies channel to multiple licensees           246

Subdivision C—Pass‑through provider supplies channel                            248

103R..... 10% minimum eligible drama expenditure—pass‑through provider supplies channel              248

103RA.. Carry‑forward eligible drama expenditure....................................... 250

103S...... Shortfall of eligible drama expenditure—pass‑through provider supplies channel   251

Subdivision D—Licensee supplies all program material                             252

103T...... 10% minimum eligible drama expenditure—licensee supplies all program material 252

103TA... Carry‑forward eligible drama expenditure....................................... 253

Subdivision E—Part‑channel provider supplies package of programs   254

103U..... 10% minimum eligible drama expenditure—part‑channel provider supplies package of programs          254

103UA.. Carry‑forward eligible drama expenditure....................................... 255

103V..... Shortfall of eligible drama expenditure—part‑channel provider supplies a package of programs exclusively to licensee........................................................................................................ 256

103W.... Shortfall of eligible drama expenditure—part‑channel provider supplies a package of programs to multiple licensees........................................................................................................ 258

Subdivision F—Part‑pass‑through provider supplies package of programs  260

103X..... 10% minimum eligible drama expenditure—part‑pass‑through provider supplies package of programs 260

103XA.. Carry‑forward eligible drama expenditure....................................... 262

103Y..... Shortfall of eligible drama expenditure—part‑pass‑through provider supplies package of programs       263

Subdivision G—Licensee supplies part of program material                    264

103Z...... 10% minimum eligible drama expenditure—licensee supplies part of program material          264

103ZAA Carry‑forward eligible drama expenditure....................................... 266

Subdivision H—Annual returns                                                                          267

103ZA... Licensee to lodge annual return....................................................... 267

103ZB... Channel provider and part‑channel provider to lodge annual return 267

103ZC... ACMA may inquire into the correctness of an annual return.......... 268

103ZD... Nominations to be attached to annual returns.................................. 268

Subdivision I—Compliance certificates                                                           269

103ZE... ACMA to issue compliance certificate............................................ 269

103ZF... Compliance certificate to be prima facie evidence............................ 272

Subdivision J—Miscellaneous                                                                            272

103ZG... Anti‑avoidance—transactions between persons not at arm’s length 272

103ZH... Expenditure to be expressed in Australian currency........................ 272

103ZJ.... Review before 31 March 2003........................................................ 273

Division 6—Miscellaneous                                                                                     274

113........ Transfer of subscription television broadcasting licence................. 274

114........ Surrender of subscription television broadcasting licence............... 274

115........ Minister may protect the free availability of certain types of programs 274

115A..... Review of anti‑siphoning provisions.............................................. 275

116........ Certain arrangements not to result in control or in persons being associates            276

116A..... Use of additional capacity............................................................... 276

116B..... Application of section 51 of the Competition and Consumer Act... 277

Part 8—Subscription broadcasting and narrowcasting class licences 278

117........ Determination of class licences....................................................... 278

118........ Conditions of class licences............................................................ 278

119........ Matters to which conditions may relate........................................... 278

120........ Variation of class licences............................................................... 279

121........ Class licences and variations to be disallowable by the Parliament. 279

Part 8A—Restrictions on subscription television broadcasting services in regional areas etc.   280

121A..... Simplified outline............................................................................ 280

121B..... Definitions...................................................................................... 280

121C..... Identical program items................................................................... 281

121D..... Continuity of program items........................................................... 281

121E...... ACMA permission is required to provide certain television services in regional areas            282

Part 8B—International broadcasting licences                                                  283

Division 1—Introduction                                                                                        283

121F...... Simplified outline............................................................................ 283

121FAA Definitions...................................................................................... 284

Division 2—Allocation of international broadcasting licences           285

121FA... Application for international broadcasting licence........................... 285

121FB... Corporate status and suitability....................................................... 285

121FC... Unsuitable applicant........................................................................ 287

121FD... Australia’s national interest............................................................. 288

121FE... Allocation of licence........................................................................ 289

Division 3—Obligations of international broadcasting licensees      290

121FF... Conditions of international broadcasting licences............................ 290

Division 4—Remedies                                                                                               291

121FG... Prohibition on providing an international broadcasting service without a licence     291

121FH... Remedial directions—unlicensed international broadcasting services 291

121FHA Breach of remedial direction—offence............................................ 291

121FHB Breach of remedial direction—civil penalty provision..................... 292

121FJ.... Offence for breach of conditions of international broadcasting licence 292

121FJA. Civil penalty provision relating to breach of conditions of international broadcasting licences 293

121FJB. Remedial directions—licence conditions......................................... 293

121FJC. Breach of remedial direction—offence............................................ 293

121FJD. Breach of remedial direction—civil penalty provision..................... 294

121FK... Cancellation of licence if service does not commence within 2 years 294

121FL... Formal warning, or cancellation or suspension of licence, where service is contrary to Australia’s national interest........................................................................................................ 295

Division 4A—Nominated broadcaster declarations                                 297

121FLA Object of this Division.................................................................... 297

121FLB. Applications for nominated broadcaster declarations...................... 297

121FLC. Making a nominated broadcaster declaration................................... 297

121FLD Effect of nominated broadcaster declaration.................................... 299

121FLE. Conditions of nominated broadcaster declarations.......................... 300

121FLF. Offence for breach of conditions of nominated broadcaster declaration 300

121FLG Revocation of nominated broadcaster declaration............................ 300

121FLH Cancellation of licence if declaration ceases to be in force and licensee is not an Australian company     302

121FLJ.. Register of nominated broadcaster declarations............................... 304

Division 5—ACMA to assist the Minister for Foreign Affairs           305

121FM.. Report about compliance with international broadcasting guidelines 305

121FN... Records of broadcasts..................................................................... 305

Division 6—Miscellaneous                                                                                     306

121FP... International broadcasting guidelines.............................................. 306

121FQ... Surrender of international broadcasting licences............................. 306

121FR... Complaints about international broadcasting services..................... 306

121FS... Statements about decisions of the Minister for Foreign Affairs...... 306

Part 9—Program standards                                                                                        308

122........ Program standards for children’s programs and Australian content 308

123........ Development of codes of practice................................................... 309

123A..... Review by the ACMA.................................................................... 313

123B..... Review by the ACMA—application of code of practice to section 38C licences     314

124........ ACMA to maintain Register of codes of practice............................ 314

125........ ACMA may determine program standards where codes of practice fail or where no code of practice developed    315

126........ Consultation on standards............................................................... 315

127........ Notification of determination or variation or revocation of standards 315

128........ Standards and codes to be amendable by the Parliament................. 316

129........ Limitation of ACMA’s power in relation to standards.................... 316

130........ Application of the Competition and Consumer Act......................... 316

Part 9A—Technical standards                                                                                   317

130A..... Technical standards for digital transmission—television etc........... 317

130AA.. Technical standards for digital transmission—radio etc.................. 319

130AB.. Technical standards relating to the operation of multiplex transmitters 320

130AC.. Technical standards for digital transmission of television services provided with the use of a satellite    320

130B..... Technical standards for domestic digital reception equipment—television etc.         321

130BA.. Technical standards for domestic digital reception equipment—radio etc.                323

130BB... Technical standards for domestic digital reception equipment—television services provided with the use of a satellite........................................................................................................ 326

Part 9B—Industry codes and industry standards                                         329

Division 1—Simplified outline                                                                              329

130C..... Simplified outline............................................................................ 329

Division 2—Interpretation                                                                                     330

130D..... Industry codes................................................................................. 330

130E...... Industry standards........................................................................... 330

130F...... Industry activities............................................................................ 330

130G..... Sections of the industry................................................................... 332

130H..... Participants in a section of the industry........................................... 332

Division 3—General principles relating to industry codes and industry standards        333

130J...... Statement of regulatory policy......................................................... 333

130K..... Examples of matters that may be dealt with by industry codes and industry standards            333

130L...... Industry codes and industry standards not to deal with certain matters 333

Division 4—Industry codes                                                                                    335

130M.... Registration of industry codes......................................................... 335

130N..... ACMA may request codes.............................................................. 336

130P...... Publication of notice where no body or association represents a section of the industry          337

130Q..... Replacement of industry codes........................................................ 337

Division 5—Industry standards                                                                          338

130R..... ACMA may determine an industry standard if a request for an industry code is not complied with        338

130S...... ACMA may determine industry standard where no industry body or association formed       339

130T...... ACMA may determine industry standards—total failure of industry codes             339

130U..... ACMA may determine industry standards—partial failure of industry codes          341

130V..... Compliance with industry standards............................................... 342

130W.... Formal warnings—breach of industry standards............................ 343

130X..... Variation of industry standards....................................................... 343

130Y..... Revocation of industry standards.................................................... 343

130Z...... Public consultation on industry standards....................................... 343

Division 6—Register of industry codes and industry standards        345

130ZA... ACMA to maintain Register of industry codes and industry standards 345

Part 9C—Access to commercial television broadcasting services provided with the use of a satellite   346

130ZBA Simplified outline............................................................................ 346

130ZB... Objectives of conditional access scheme—South Eastern Australia TV3 licence area and Northern Australia TV3 licence area.................................................................................................. 346

130ZBB Objectives of conditional access scheme—Western Australia TV3 licence area       352

130ZBC Publishing details of open access areas on the ACMA’s website... 358

130ZC... Registration of conditional access scheme developed by representative body or association    359

130ZCAA ACMA may invite representative body or association to develop a revised conditional access scheme 360

130ZCAB ACMA may request development of replacement conditional access scheme       361

130ZCA Registration of conditional access scheme formulated by the ACMA 362

130ZD... Replacement of conditional access scheme...................................... 364

130ZE... ACMA to maintain register of conditional access schemes............. 365

130ZEA ACMA to maintain register of designated digital service days........ 365

130ZF... ACMA may direct a scheme administrator to issue a reception certificate etc.         366

130ZFA Adequate reception.......................................................................... 369

130ZG... Applicable terrestrial digital commercial television broadcasting services                369

130ZH... Declared service‑deficient areas...................................................... 370

Part 9D—Captioning                                                                                                       374

Division 1—Introduction                                                                                        374

130ZJ.... Simplified outline............................................................................ 374

130ZK... Definitions...................................................................................... 374

130ZL... Designated viewing hours............................................................... 377

130ZM.. This Part does not apply to foreign language programs.................. 378

130ZN... This Part does not apply to programs that consist wholly of music 378

130ZO... Captioning service provided for part of program............................ 378

130ZP... Multiple subscription television services provided by licensee....... 379

130ZQ... Television service provided in a period........................................... 379

Division 2—Captioning obligations of commercial television broadcasting licensees and national broadcasters                                                                                        380

130ZR... Captioning obligations—basic rule................................................. 380

130ZS... Captioning obligations—special rules for multi‑channelled services 383

130ZT... Annual captioning targets for 2012‑13 and 2013‑14—commercial television broadcasting licensees      385

130ZU... Annual captioning targets for 2012‑13 and 2013‑14—national broadcasters           387

130ZUA Exemption orders and target reduction orders—unjustifiable hardship 390

130ZUAA Effect of target reduction order.................................................... 394

130ZUB Certain breaches to be disregarded.................................................. 397

Division 3—Captioning obligations of subscription television licensees                398

130ZV... Annual captioning targets—subscription television licensees......... 398

130ZVA Categories for subscription television movie services..................... 401

130ZW.. Categories for subscription television general entertainment services 402

130ZX... Exemptions—certain subscription television services provided before 1 July 2022 404

130ZY... Exemption orders and target reduction orders—unjustifiable hardship 409

130ZYA Effect of target reduction order........................................................ 412

130ZZ... Captioning services for repeats of television programs................... 413

130ZZAA Captioning services for simultaneously transmitted
television programs
......................................................................... 414

130ZZAB Certain breaches to be disregarded................................................ 414

Division 4—Captioning standards                                                                     415

130ZZA Captioning standards....................................................................... 415

Division 5—Emergency warnings                                                                      417

130ZZB. Emergency warnings....................................................................... 417

Division 6—Reports and record‑keeping                                                       419

130ZZC. Annual compliance reports.............................................................. 419

130ZZD Record‑keeping............................................................................... 420

Division 7—Review of this Part etc.                                                                 422

130ZZE. Review of this Part etc.................................................................... 422

Part 10—Remedies for breaches of licensing provisions                           423

Division 1—Offences for providing unlicensed services                        423

131........ Prohibition on providing a commercial television broadcasting service without a licence        423

132........ Prohibition on providing a subscription television broadcasting service without a licence       423

133........ Prohibition on providing a commercial radio broadcasting service without a licence               423

134........ Prohibition on providing a community television broadcasting service without a licence         423

135........ Prohibition on providing a community radio broadcasting service without a licence                424

136........ Continuing offences........................................................................ 424

Division 1A—Civil penalty provisions relating to unlicensed services   425

136A..... Prohibition on providing a commercial television broadcasting service without a licence        425

136B..... Prohibition on providing a subscription television broadcasting service without a licence       425

136C..... Prohibition on providing a commercial radio broadcasting service without a licence               425

136D..... Prohibition on providing a community television broadcasting service without a licence         425

136E...... Prohibition on providing a community radio broadcasting service without a licence                426

136F...... Continuing breaches........................................................................ 426

Division 2—Action by ACMA where a person provides a service without a licence     427

137........ Remedial directions—unlicensed services....................................... 427

138........ Breach of remedial direction—offences.......................................... 427

138A..... Breach of remedial direction—civil penalty provision..................... 428

Division 3—Action in relation to breaches by licensees                         429

139........ Offence for breach of conditions of licences and class licences...... 429

140........ Continuing offences........................................................................ 431

140A..... Civil penalty provisions relating to breach of conditions of licences and class licences            431

141........ Remedial directions—licence conditions, class licences and codes of practice         432

142........ Breach of remedial direction—offences.......................................... 434

142A..... Breach of remedial direction—civil penalty provision..................... 435

143........ Suspension and cancellation............................................................ 436

Division 4—Action in relation to class licences                                          438

144........ Application to Federal Court........................................................... 438

Part 10A—Anti‑hoarding rules                                                                                 439

Division 1—Introduction                                                                                        439

146A..... Simplified outline............................................................................ 439

146B..... Definitions...................................................................................... 440

146C..... Designated events and designated series of events.......................... 441

146CA.. When event or series is eligible for delayed televising in the Central‑Western time zones        442

146D..... Program suppliers........................................................................... 443

Division 2—Commercial television broadcasting licensees                  445

146E...... Anti‑hoarding rule—licensees......................................................... 445

146F...... Anti‑hoarding rule—program suppliers.......................................... 446

146G..... What constitutes an offer to transfer rights to televise live events... 447

146H..... Offers to transfer rights to televise live events................................ 448

146J...... Contracts to acquire rights to televise live events must authorise the transfer of the rights       449

146K..... Simultaneous events in a series....................................................... 450

146KA.. Delayed televising in the Central‑Western time zones..................... 451

Division 3—National broadcasters                                                                   453

146L...... Anti‑hoarding rule........................................................................... 453

146M.... What constitutes an offer to transfer rights to televise live events... 454

146N..... Offers to transfer rights to televise live events................................ 454

146P...... Contracts to acquire rights to televise live events must authorise the transfer of the rights       455

146Q..... Simultaneous events in a series....................................................... 455

146R..... Delayed televising in the Central‑Western time zones..................... 456

Division 4—Review of anti‑hoarding provisions                                       459

146S...... Review of anti‑hoarding provisions................................................ 459

Part 11—Complaints to the ACMA                                                                       460

Division 1—Complaints relating to action under licences and class licences      460

147........ Complaints relating to offences or breach of licence conditions...... 460

148........ Complaints under codes of practice................................................. 460

149........ Investigation of complaints by the ACMA..................................... 460

Division 2—Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS                                                                                 462

150........ Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS           462

151........ Investigation of complaints relating to the ABC or SBS by the ACMA  462

152........ Action by ACMA where complaint justified.................................. 463

153........ ACMA may report to Minister on results of recommendation........ 463

Part 13—Information gathering by the ACMA                                             464

Division 1—Introduction                                                                                        464

168........ Obtaining of information by the ACMA......................................... 464

169........ Decision‑making by the ACMA not limited to matters discovered by investigation or hearing               464

Division 2—Investigations                                                                                     465

170........ Investigations by the ACMA.......................................................... 465

171........ Minister may direct ACMA to conduct an investigation................. 465

172........ ACMA may call for written submissions from the public.............. 465

173........ Notice requiring appearance for examination.................................. 466

174........ Examination on oath or affirmation................................................. 466

175........ Examination to take place in private................................................ 466

176........ Record to be made of examination.................................................. 466

177........ Production of documents for inspection.......................................... 467

178........ Report on investigation................................................................... 467

179........ Publication of report........................................................................ 467

180........ Person adversely affected by report to be given opportunity to comment 467

Division 3—Hearings                                                                                                469

182........ Power to hold hearings................................................................... 469

183........ Minister may direct ACMA to hold a hearing................................. 469

184........ Procedure for conduct of hearings.................................................. 469

185........ ACMA may direct holding of conference....................................... 469

186........ Hearings to be informal, quick and economical............................... 470

187........ Hearings to be in public except in exceptional cases....................... 470

188........ Public notice of hearings................................................................. 470

189........ Confidential material not to be published........................................ 470

190........ Directions as to private hearings..................................................... 471

191........ Constitution of ACMA for conduct of hearings............................. 471

192........ Presiding member........................................................................... 471

193........ Reconstitution of hearing panel....................................................... 471

194........ Exercise of powers in relation to conduct of hearing....................... 471

195........ Summons to give evidence or produce documents.......................... 472

196........ Written submissions may be made to hearing................................. 472

197........ Evidence and submissions to be taken into account by ACMA...... 472

198........ Representation at hearings............................................................... 472

199........ Reports on hearings........................................................................ 473

Division 4—General                                                                                                  474

200........ Protection of members and persons giving evidence....................... 474

201........ Protection of panel conducting hearing........................................... 474

202........ Non‑compliance with requirement to give evidence........................ 474

203........ Proceedings for defamation not to lie.............................................. 476

Part 14—Appeals to the Administrative Appeals Tribunal                     477

204........ Appeals to the Administrative Appeals Tribunal............................. 477

205........ Notification of decisions to include notification of reasons and appeal rights           483

Part 14A—Accounts and payment of licence fees                                         485

205A..... Definitions...................................................................................... 485

205B..... Broadcasting licensees to keep accounts......................................... 485

205BA.. Datacasting transmitter licensees to keep accounts.......................... 487

205C..... Payment of licence fees................................................................... 488

205D..... Penalty for unpaid licence fees........................................................ 488

Part 14B—Civil penalties                                                                                              492

Division 1—Ancillary contravention of civil penalty provision         492

205E...... Ancillary contravention of civil penalty provision........................... 492

Division 2—Civil penalty orders                                                                        493

205EA... Simplified outline............................................................................ 493

205F...... Civil penalty orders......................................................................... 493

205G..... Who may apply for a civil penalty order......................................... 494

205H..... 2 or more proceedings may be heard together................................. 495

205J...... Time limit for application for an order............................................. 495

205K..... Civil evidence and procedure rules for civil penalty orders............. 495

205L...... Civil proceedings after criminal proceedings................................... 495

205M.... Criminal proceedings during civil proceedings............................... 495

205N..... Criminal proceedings after civil proceedings................................... 495

205P...... Evidence given in proceedings for a civil penalty order not admissible in criminal proceedings              496

205PAA Mistake of fact................................................................................ 496

Part 14C—Injunctions                                                                                                    498

205PA... Simplified outline............................................................................ 498

205Q..... Injunctions...................................................................................... 498

205R..... Interim injunctions.......................................................................... 498

205S...... Discharge etc. of injunctions........................................................... 499

205T...... Certain limits on granting injunctions not to apply.......................... 499

205U..... Other powers of the Federal Court unaffected................................ 499

Part 14D—Enforceable undertakings                                                                   500

205V..... Simplified outline............................................................................ 500

205W.... Acceptance of undertakings............................................................ 500

205X..... Enforcement of undertakings.......................................................... 501

Part 14E—Infringement notices                                                                               502

205XAA.................................................................................. Simplified outline  502

205XA.. Formal warning............................................................................... 502

205Y..... When an infringement notice can be given...................................... 502

205Z...... Matters to be included in an infringement notice............................. 503

205ZA... Amount of penalty.......................................................................... 503

205ZB... Withdrawal of an infringement notice............................................. 503

205ZC... What happens if the penalty is paid................................................. 504

205ZD... Effect of this Part on criminal proceedings...................................... 504

205ZE... Appointment of authorised infringement notice officer................... 505

205ZF... Regulations..................................................................................... 505

Part 15—Miscellaneous                                                                                                  506

206........ Broadcasting or datacasting taken to be publication in permanent form 506

207........ Amounts of fees.............................................................................. 506

209........ Prosecutions.................................................................................... 506

210........ Publication of opinions................................................................... 506

211........ Service of notices............................................................................ 507

211AA.. Time when a television program is broadcast—certain terrestrial licence areas        507

211A..... Time when a television program is broadcast—South Eastern Australia TV3 and Northern Australia TV3 licence areas........................................................................................................ 508

212........ Special provisions for re‑transmission of programs........................ 510

212A..... Self‑help providers.......................................................................... 512

212B..... Declared self‑help providers and excluded providers...................... 514

213........ Penalties for continuing offences.................................................... 514

214........ Procedure relating to continuing offences....................................... 515

215........ Guidelines relating to ACMA’s enforcement powers etc................ 515

215A..... Review—technologies for the transmission of digital radio broadcasting services and restricted datacasting services in regional licence areas etc................................................................. 516

215B..... Review—development and regulation of digital radio broadcasting services and restricted datacasting services     518

216........ Ministerial consultative and advisory bodies................................... 518

216A..... Schedule 4 (digital television broadcasting).................................... 518

216B..... Schedule 5 (online services)............................................................ 519

216C..... Schedule 6 (datacasting services).................................................... 519

216D..... Schedule 7 (content services).......................................................... 519

217........ Regulations..................................................................................... 519

218........ Channel sharing.............................................................................. 519

Schedule 1—Control and ownership of company interests                     521

Part 1—Introduction                                                                                                        521

1............ Control—general............................................................................. 521

Part 2—When person is in a position to exercise control                           523

2............ When person is in a position to exercise control............................. 523

3............ When person is in a position to exercise control of a newspaper.... 526

4............ Special provisions for authorised lenders........................................ 527

Part 3—Deemed control                                                                                                 531

5............ Explanation of examples................................................................. 531

6............ The 15% rule................................................................................... 531

7............ Application of method through chain of companies........................ 531

Part 4—Tracing of ownership                                                                                   532

8............ Tracing of ownership...................................................................... 532

Schedule 2—Standard conditions                                                                            534

Part 1—Interpretation                                                                                                    534

1............ Definitions...................................................................................... 534

2............ Interpretation—certain things do not amount to broadcasting of advertisements      537

Part 2—Special conditions                                                                                            538

3............ Broadcasting of political or controversial material........................... 538

3A......... Broadcasting of election advertisements.......................................... 538

4............ Identification of certain political matter............................................ 539

5............ Records of matter broadcast............................................................ 540

6............ Advertisements relating to medicines.............................................. 541

Part 3—Commercial television broadcasting licences                                  543

Division 1—General                                                                                                  543

7............ Conditions of commercial television broadcasting licences............. 543

Division 2—Licences allocated under section 38C                                   550

7A......... Common conditions........................................................................ 550

7B......... Conditions about the provision of core/primary commercial television broadcasting services  550

7C......... Conditions about the provision of non‑core/primary commercial television broadcasting services          553

7D......... Condition about the provision of local news services..................... 557

7E.......... Exemption—provision of new commercial television broadcasting services not technically feasible       558

7F.......... Exemption—commercial television broadcasting services with the same program content      559

7G......... Delay in commencement of new commercial television broadcasting services         560

7H......... Start dates for licence areas............................................................. 561

7J.......... Program content.............................................................................. 562

7K......... SDTV multi‑channelled commercial television broadcasting service 563

7L.......... Definitions...................................................................................... 563

Part 4—Commercial radio broadcasting licences                                          565

8............ Standard conditions of commercial radio broadcasting licences...... 565

Part 5—Community broadcasting licences                                                        569

9............ Conditions applicable to services provided under community broadcasting licences                569

Part 6—Subscription television broadcasting licences                                 573

10.......... Conditions applicable to subscription television broadcasting licences 573

Part 7—Services provided under class licences                                               576

11.......... Conditions applicable to broadcasting services provided under class licences          576


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

  

Part 1Preliminary

  

1  Short title [see Note 1]

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

2  Commencement [see Note 1]

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

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

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

3  Objects of this Act

             (1)  The objects of this Act are:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

             (2)  In this section:

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

internet content has the same meaning as in Schedule 5.

4  Regulatory policy

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

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

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

                     (b)  will readily accommodate technological change; and

                     (c)  encourages:

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

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

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

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

                     (b)  will readily accommodate technological change; and

                     (c)  encourages:

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

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

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

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

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

                     (b)  will readily accommodate technological change; and

                     (c)  encourages:

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

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

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

             (4)  In this section:

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

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

internet content has the same meaning as in Schedule 5.

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

5  Role of the ACMA

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

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

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

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

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

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

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

                     (b)  the Australian Competition and Consumer Commission; or

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

             (4)  In this section:

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

6  Interpretation

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

ACMA means the Australian Communications and Media Authority.

ACNC type of entity means an entity that meets the description of a type of entity in column 1 of the table in subsection 25‑5(5) of the Australian Charities and Not‑for‑profits Commission Act 2012.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Note 2:       See also subsection (3).

associate member means an associate member of the ACMA.

authorised infringement notice officer means:

                     (a)  the Chair of the ACMA; or

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

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

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

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

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

broadcasting services bands means:

                     (a)  that part of the radiofrequency spectrum that is designated under subsection 31(1) of the Radiocommunications Act 1992 as being primarily for broadcasting purposes; and

                     (b)  that part of the radiofrequency spectrum that is designated under subsection 31(1A) of the Radiocommunications Act 1992 as being partly for the purpose of digital radio broadcasting services and restricted datacasting services.

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

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

CER Trade in Services Protocol:

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

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

Chair means the Chair of the ACMA.

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

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

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

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

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

commercial broadcasting service has the meaning given by section 14.

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

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

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

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

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

                    (aa)  in the case of a licence allocated under section 38C—the commercial television broadcasting services that, under section 41CA, are authorised by the licence; or

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

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

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

community broadcasting licence means:

                     (a)  a community radio broadcasting licence; or

                     (b)  a community television broadcasting licence.

community broadcasting service has the meaning given by section 15.

community radio broadcasting licence means:

                     (a)  a licence under Part 6 to provide:

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

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

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

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

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

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

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

conditional access scheme means a scheme that sets out rules relating to access to services provided under a commercial television broadcasting licence allocated under section 38C.

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

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

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

Note:          There is no core commercial television broadcasting service in relation to a licence allocated on or after 1 January 2009. This is because core commercial television broadcasting services are certain services authorised by licences allocated before 1 January 2009.

core/primary commercial television broadcasting service, in relation to a commercial television broadcasting licence, means:

                     (a)  if a core commercial television broadcasting service is provided under the licence—that service; or

                     (b)  if a primary commercial television broadcasting service (within the meaning of Schedule 4) is provided under the licence—that service.

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

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

datacasting service means a service that delivers content:

                     (a)  whether in the form of text; or

                     (b)  whether in the form of data; or

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

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

                     (e)  whether in any other form; or

                      (f)  whether in any combination of forms;

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

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

de facto partner of a person has the meaning given by the Acts Interpretation Act 1901.

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

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

designated re‑stack day has the meaning given by subsection 26(1K).

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

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

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

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

                     (a)  in the form of text; or

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

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

                     (d)  in any combination of the above forms;

where:

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

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

                     (g)  if:

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

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

                            the reception equipment will also receive the content.

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

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

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

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

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

Federal Court means the Federal Court of Australia.

final digital television switch‑over day has the meaning given by section 8AE.

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

infringement notice means an infringement notice under section 205Y.

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

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

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

legislature of a Territory means:

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

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

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

licence means:

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

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

                             (ii)  a datacasting transmitter licence; and

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

licence area means:

                     (a)  an area designated by the ACMA under section 29, 40 or 92G; or

                     (b)  an area specified in column 1 of the table in subsection 38C(1).

Note 1:       See also section 8AD, which deals with deemed radio broadcasting licence areas.

Note 2:       See also section 8 of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992, which deals with deemed licence areas.

licence area plan means a licence area plan prepared under subsection 26(1) or (1B).

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

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

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

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

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

member means a member of the ACMA.

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

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

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

national broadcasting service has the meaning given by section 13.

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

near relative, in relation to a person, means:

                     (a)  a parent, step‑parent, child, stepchild, grandparent, grandchild, brother or sister of the person; or

                     (b)  the spouse of the first‑mentioned person.

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

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

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

open narrowcasting service has the meaning given by section 18.

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

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

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

Parliament means:

                     (a)  the Parliament of the Commonwealth; or

                     (b)  a State Parliament; or

                     (c)  the legislature of a Territory.

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

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

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

program, in relation to a broadcasting service, means:

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

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

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

radio program has a meaning affected by section 8AB.

reception certificate means a reception certificate issued under a conditional access scheme registered under Part 9C.

regional racing service radio licence has the meaning given by section 8AF.

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

                     (a)  section 123; or

                     (b)  clause 62 of Schedule 5; or

                     (c)  clause 28 of Schedule 6; or

                     (d)  clause 85 of Schedule 7.

remote area service radio licence means a regional commercial radio broadcasting licence (within the meaning of Division 5C of Part 5) the licence area of which is:

                     (a)  Remote Commercial Radio Service Central Zone RA1; or

                     (b)  Remote Commercial Radio Service North East Zone RA1; or

                     (c)  Remote Commercial Radio Service Western Zone RA1.

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

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

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

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

scheme administrator:

                     (a)  in relation to a conditional access scheme for the South Eastern Australia TV3 licence area or the Northern Australia TV3 licence area—has the meaning given by subsection 130ZB(8); or

                     (b)  in relation to a conditional access scheme for the Western Australia TV3 licence area—has the meaning given by subsection 130ZBB(9).

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

spouse of a person includes a de facto partner of the person.

stepchild: without limiting who is a stepchild of a person for the purposes of this Act, someone who is a child of a de facto partner of the person is the stepchild of the person if he or she would be the person’s stepchild except that the person is not legally married to the partner.

step‑parent: without limiting who is a step‑parent of a person for the purposes of this Act, someone who is a de facto partner of a parent of the person is the step‑parent of the person if he or she would be the person’s step‑parent except that he or she is not legally married to the person’s parent.

subscription broadcasting service has the meaning given by section 16.

subscription fee includes any form of consideration.

subscription narrowcasting service has the meaning given by section 17.

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

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

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

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

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

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

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

television licence area plan means a licence area plan prepared under subsection 26(1B).

temporary community broadcasting licence means a community broadcasting licence that:

                     (a)  is a broadcasting services bands licence; and

                     (b)  is allocated under Part 6A.

transaction includes:

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

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

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

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

7  Interpretation—meaning of control

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

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

                     (b)  tracing company interests of persons.

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

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

             (1)  For the purposes of this Act:

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

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

             (2)  For the purposes of this Act:

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

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

             (3)  For the purposes of this Act:

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

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

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

                     (b)  the percentage of the interest is:

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

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

             (4)  For the purposes of this Act:

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

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

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

8A  Captioning taken to be part of program

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

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

8AA  Designated community radio broadcasting licence

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

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

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

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

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

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

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

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

Commercial radio broadcasting services

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

                     (a)  a digital commercial radio broadcasting service; and

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

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

Community radio broadcasting services

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

                     (a)  a digital community radio broadcasting service; and

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

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

National radio broadcasting services

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

                     (a)  a digital national radio broadcasting service; and

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

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

8AC  Digital radio start‑up day

             (1)  If the ACMA is satisfied that:

                     (a)  the ACMA has taken sufficient action under:

                              (i)  Part 3 of this Act; and

                             (ii)  Part 2.3 of the Radiocommunications Act 1992;

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

                            (iii)  digital commercial radio broadcasting services;

                            (iv)  digital community radio broadcasting services;

                             (v)  digital national radio broadcasting services; and

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

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

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

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

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

             (3)  The ACMA must ensure that:

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

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

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

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

ACMA to give notice of intention to make a declaration

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

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

Definitions

             (8)  In this section:

licence area means:

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

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

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

                     (a)  New South Wales; or

                     (b)  Victoria; or

                     (c)  Queensland; or

                     (d)  Western Australia; or

                     (e)  South Australia.

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

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

8AD  Deemed radio broadcasting licence areas

Western Suburbs Sydney RA1

             (1)  For the purposes of:

                     (a)  section 8AC of this Act; and

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

                     (c)  the application of:

                              (i)  any other provision of this Act; or

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

                            (iii)  any other law of the Commonwealth;

                            to digital commercial radio broadcasting services;

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

Hobart RA2 and Hobart RA4

             (2)  For the purposes of:

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

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

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

                     (d)  the application of:

                              (i)  any other provision of this Act; or

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

                            (iii)  any other law of the Commonwealth;

                            to digital community radio broadcasting services;

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

Other licence areas

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

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

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

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

                     (d)  the application of:

                              (i)  any other provision of this Act; or

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

                            (iii)  any other law of the Commonwealth;

                            to digital community radio broadcasting services;

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

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

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

8AE  Final digital television switch‑over day

             (1)  For the purposes of this Act, the final digital television switch‑over day is the last switch‑over day.

             (2)  For the purposes of subsection (1), the last day of a simulcast period is a switch‑over day.

             (3)  In this section:

simulcast period has the same meaning as in Schedule 4.

8AF  Regional racing service radio licence

             (1)  For the purposes of this Act, a regional racing service radio licence is a regional commercial radio broadcasting licence (within the meaning of Division 5C of Part 5), where the following conditions are satisfied in relation to a broadcasting service provided under the licence:

                     (a)  the broadcasting service is promoted, on the broadcasting service:

                              (i)  as a broadcasting service of interest mainly to persons involved in horse racing, harness racing or greyhound racing; or

                             (ii)  using the phrase “racing radio service”;

                     (b)  the racing content percentage, in relation to the broadcasting service, is 60% or more for each day, other than Christmas Day and Good Friday;

                     (c)  if, on a particular day, content other than racing content is broadcast on the broadcasting service—a significant proportion of that content is:

                              (i)  relevant to horse racing, harness racing or greyhound racing; or

                             (ii)  of interest mainly to persons involved in horse racing, harness racing or greyhound racing.

             (2)  For the purposes of this section, racing content percentage means the percentage worked out using the following formula:

             (3)  For the purposes of this section, racing content means content that consists of:

                     (a)  coverage of a horse race, a harness race or a greyhound race; or

                     (b)  information directly related to horse racing, harness racing or greyhound racing, including:

                              (i)  selections; and

                             (ii)  scratchings; and

                            (iii)  betting information; and

                            (iv)  track conditions; or

                     (c)  other material that is broadcast during an hour, so long as that material:

                              (i)  is broadcast between 2 races of a kind referred to in paragraph (a); and

                             (ii)  is not broadcast for more than 15 minutes of the hour.

8B  Remote Indigenous community

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

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

9  Act to bind the Crown

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

10  Extension of Act to the external Territories

                   This Act extends to all the external Territories.

10A  Application of the Criminal Code

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

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

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


 

Part 2Categories of broadcasting services

  

11  Categories of broadcasting services

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

                     (a)  national broadcasting services;

                     (b)  commercial broadcasting services;

                     (c)  community broadcasting services;

                     (d)  subscription broadcasting services;

                     (e)  subscription narrowcasting services;

                      (f)  open narrowcasting services;

                    (fa)  international broadcasting services.

11A  Dual categorisation of international broadcasting services

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

12  Method of regulating particular services

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

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

Dual categorisation of international broadcasting services

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

                     (a)  an international broadcasting licence; and

                     (b)  either:

                              (i)  a commercial radio broadcasting licence; or

                             (ii)  a commercial television broadcasting licence.

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

                     (a)  an international broadcasting licence; and

                     (b)  a community broadcasting licence.

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

                     (a)  an international broadcasting licence; and

                     (b)  a subscription television broadcasting licence.

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

                     (a)  the service requires an international broadcasting licence;

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

13  National broadcasting services

             (1)  National broadcasting services are:

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

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

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

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

             (3)  Subsection (2) does not apply to services specified by the Minister by notice in the Gazette.

             (4)  A specification under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (5)  Except as expressly provided by this Act, the regulatory regime established by this Act does not apply to national broadcasting services.

14  Commercial broadcasting services

             (1)  Commercial broadcasting services are broadcasting services:

                     (a)  that provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and

                     (b)  that provide programs that:

                              (i)  are able to be received by commonly available equipment; and

                             (ii)  are made available free to the general public; and

                     (c)  that are usually funded by advertising revenue; and

                     (d)  that are operated for profit or as part of a profit‑making enterprise; and

                     (e)  that comply with any determinations or clarifications under section 19 in relation to commercial broadcasting services.

             (2)  For the purposes of the application of subsection (1) to a broadcasting service provided under a licence allocated under section 38C, assume that there is no conditional access system that relates to the broadcasting service.

15  Community broadcasting services

                   Community broadcasting services are broadcasting services that:

                     (a)  are provided for community purposes; and

                     (b)  are not operated for profit or as part of a profit‑making enterprise; and

                     (c)  that provide programs that:

                              (i)  are able to be received by commonly available equipment; and

                             (ii)  are made available free to the general public; and

                     (d)  comply with any determinations or clarifications under section 19 in relation to community broadcasting services.

16  Subscription broadcasting services

                   Subscription broadcasting services are broadcasting services that:

                     (a)  provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public; and

                     (b)  are made available to the general public but only on payment of subscription fees (whether periodical or otherwise); and

                     (c)  comply with any determinations or clarifications under section 19 in relation to subscription broadcasting services.

17  Subscription narrowcasting services

                   Subscription narrowcasting services are broadcasting services:

                     (a)  whose reception is limited:

                              (i)  by being targeted to special interest groups; or

                             (ii)  by being intended only for limited locations, for example, arenas or business premises; or

                            (iii)  by being provided during a limited period or to cover a special event; or

                            (iv)  because they provide programs of limited appeal; or

                             (v)  for some other reason; and

                     (b)  that are made available only on payment of subscription fees (whether periodical or otherwise); and

                     (c)  that comply with any determinations or clarifications under section 19 in relation to subscription narrowcasting services.

18  Open narrowcasting services

             (1)  Open narrowcasting services are broadcasting services:

                     (a)  whose reception is limited:

                              (i)  by being targeted to special interest groups; or

                             (ii)  by being intended only for limited locations, for example, arenas or business premises; or

                            (iii)  by being provided during a limited period or to cover a special event; or

                            (iv)  because they provide programs of limited appeal; or

                             (v)  for some other reason; and

                     (b)  that comply with any determinations or clarifications under section 19 in relation to open narrowcasting services.

          (1A)  A HDTV multi‑channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

       (1AA)  A SDTV multi‑channelled commercial television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

          (1B)  A HDTV multi‑channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

             (2)  A SDTV multi‑channelled national television broadcasting service (within the meaning of Schedule 4) is not an open narrowcasting service.

             (3)  A digital commercial radio broadcasting service is not an open narrowcasting service.

             (4)  A digital community radio broadcasting service is not an open narrowcasting service.

             (5)  A digital national radio broadcasting service is not an open narrowcasting service.

18A  International broadcasting services

             (1)  International broadcasting services are broadcasting services that are targeted, to a significant extent, to audiences outside Australia, where:

                     (a)  the means of delivering the services involves the use of a radiocommunications transmitter in Australia (whether alone or in combination with any other means); and

                     (b)  the services comply with any determinations or clarifications under section 19 in relation to international broadcasting services.

             (2)  A broadcasting service is not an international broadcasting service if the broadcasting service is:

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

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

                     (c)  an exempt broadcasting service (as defined by subsection (3)).

             (3)  For the purposes of this section, a broadcasting service is an exempt broadcasting service if:

                     (a)  the service delivers only programs packaged outside Australia (which may include programs produced in Australia); and

                     (b)  all relevant programming decisions are made outside Australia; and

                     (c)  the service is transmitted from a place outside Australia to an earth station in Australia for the sole purpose of being immediately re‑transmitted to a satellite; and

                     (d)  the satellite is a means of delivering the service (whether alone or in combination with any other means).

             (4)  The references in this section to localities do not, by implication, affect the application of paragraph 21(b) of the Acts Interpretation Act 1901 and section 10 of this Act to a provision of this Act that deals with a category of broadcasting services other than international broadcasting services.

             (5)  In this section:

Australia includes the external Territories.

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

19  ACMA may determine additional criteria or clarify existing criteria

             (1)  The ACMA may, by notice in the Gazette:

                     (a)  determine additional criteria to those specified in sections 14 to 18A; or

                     (b)  clarify the criteria specified in sections 14 to 18A;

for the purpose of distinguishing between categories of broadcasting services.

             (2)  Different criteria or clarifications may be determined or made for radio services and television services.

             (3)  The Minister may give specific directions to the ACMA as to the making of determinations and clarifications, and the ACMA must observe those directions.

20  Determinations and clarifications to be disallowable by the Parliament

                   Determinations and clarifications under section 19 are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

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

             (1)  A person who is providing, or who proposes to provide, a broadcasting service may apply to the ACMA for an opinion as to which category, or categories, of broadcasting services the service falls into.

             (2)  An application must be in accordance with a form approved in writing by the ACMA, and must state the applicant’s opinion as to which category, or categories, of broadcasting services the service falls into.

             (3)  If the ACMA considers that additional information is required before an opinion can be given, the ACMA may, by notice in writing given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  The ACMA must, as soon as practicable after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into.

             (5)  If the ACMA has given an opinion under this section to the provider of a broadcasting service, neither the ACMA nor any other Government agency may, while the circumstances relating to the broadcasting service remain substantially the same as those advised to the ACMA in relation to the application for the opinion:

                     (a)  take any action against the provider of the service during the period of 5 years commencing on the day on which the opinion is given on the basis that the service falls into a different category, or different categories, of broadcasting services than that advised in the opinion; or

                     (b)  unless the ACMA has made a determination or clarification under section 19 after that opinion was given that places the broadcasting service in a different category or different categories—take any action against the provider of the service after the end of that period on the basis that the service falls into a different category, or different categories, of broadcasting services.

             (6)  If the ACMA does not, within 45 days after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

give the applicant, in writing, its opinion as to which category, or categories, of broadcasting services the service falls into, the ACMA is taken to have given an opinion at the end of that period that accords with the applicant’s opinion.

             (7)  The ACMA may charge a fee for providing an opinion under this section.

             (8)  The ACMA must not give an opinion under this section that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.

             (9)  A person must not, in an application under this section, state an opinion that a particular broadcasting service falls into more than one category of broadcasting services unless one of the categories is international broadcasting services.

22  Matters to be considered by ACMA

                   In making determinations or clarifications under section 19 in relation to broadcasting services, and in giving opinions under section 21 in relation to broadcasting services, the ACMA is to have regard to:

                     (a)  the geographic coverage of those services; and

                     (b)  the number of persons who receive or are able to receive those services; and

                     (c)  the accessibility of those services, including:

                              (i)  whether those services are encrypted; and

                             (ii)  whether their availability is otherwise restricted, whether because of the high cost of the equipment required to receive those services, the controlled supply of that equipment or otherwise; and

                            (iii)  whether their comprehensibility is otherwise restricted; and

                     (d)  the duration and frequency of the provision of those services, including whether those services are provided for a set period only; and

                     (e)  the nature of the audience to which those services are targeted; and

                      (f)  the nature of the programs being provided by those services, including:

                              (i)  the level of interest in the subject matter of those programs; and

                             (ii)  whether those programs are directed at a specialised audience; and

                            (iii)  the social and cultural impact of those programs; and

                     (g)  such other matters as the ACMA thinks fit.


 

Part 3Planning of the broadcasting services bands

  

23  Planning criteria

                   In performing functions under this Part, the ACMA is to promote the objects of this Act including the economic and efficient use of the radiofrequency spectrum, and is to have regard to:

                     (a)  demographics; and

                     (b)  social and economic characteristics within the licence area, within neighbouring licence areas and within Australia generally; and

                     (c)  the number of existing broadcasting services and the demand for new broadcasting services within the licence area, within neighbouring licence areas and within Australia generally; and

                     (d)  developments in technology; and

                     (e)  technical restraints relating to the delivery or reception of broadcasting services; and

                      (f)  the demand for radiofrequency spectrum for services other than broadcasting services; and

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

24  ACMA to determine priorities

             (1)  Before preparing frequency allotment plans or licence area plans, the ACMA must, by notice in writing, determine priorities, as between particular areas of Australia and as between different parts of the broadcasting services bands, for the preparation of those plans.

             (2)  The ACMA may, by notice in writing, vary priorities.

25  Preparation of frequency allotment plans

             (1)  Where the Minister has, under subsection 31(1) of the Radiocommunications Act 1992, referred a part of the radiofrequency spectrum to the ACMA for planning, the ACMA must prepare in writing a frequency allotment plan that determines the number of channels that are to be available in particular areas of Australia to provide broadcasting services or restricted datacasting services, or both, using that part of the radiofrequency spectrum.

             (2)  The ACMA may, by notice in writing, vary a frequency allotment plan prepared under subsection (1).

          (2A)  If the Minister has, under subsection 31(1A) of the Radiocommunications Act 1992, referred a part of the radiofrequency spectrum to the ACMA for planning, the ACMA must, by legislative instrument, prepare a frequency allotment plan that determines the number of channels that are to be available in particular areas of Australia to provide the following services using that part of the radiofrequency spectrum:

                     (a)  digital commercial radio broadcasting services;

                     (b)  digital community radio broadcasting services;

                     (c)  digital national radio broadcasting services;

                     (d)  restricted datacasting services.

          (2B)  The ACMA may, by legislative instrument, vary a frequency allotment plan prepared under subsection (2A).

             (3)  In preparing or varying a frequency allotment plan, the ACMA must comply with any directions, whether of a general or specific nature, given to the ACMA in writing by the Minister.

             (4)  Sections 23, 24 and 27 do not apply in relation to the preparation or variation of a frequency allotment plan to the extent to which the frequency allotment plan or the variation, as the case may be, relates to any of the following services:

                     (a)  digital commercial radio broadcasting services;

                     (b)  digital community radio broadcasting services;

                     (c)  digital national radio broadcasting services;

                     (d)  restricted datacasting services.

26  Preparation of licence area plans

             (1)  The ACMA must, by legislative instrument, prepare licence area plans that determine the number and characteristics, including technical specifications, of broadcasting services that are to be available in particular areas of Australia with the use of the broadcasting services bands, and those plans must be consistent with the relevant frequency allotment plan.

          (1A)  To the extent to which a licence area plan prepared under subsection (1) deals with:

                     (a)  digital commercial radio broadcasting services; or

                     (b)  digital community radio broadcasting services; or

                     (c)  digital national radio broadcasting services;

the licence area plan is not required to determine the technical specifications of those services.

Television licence area plans

          (1B)  The ACMA may, by legislative instrument, prepare licence area plans that:

                     (a)  specify the channels that, under the relevant frequency allotment plan, are to be available in particular areas of Australia to provide the following services:

                              (i)  commercial television broadcasting services;

                             (ii)  national television broadcasting services;

                            (iii)  other television broadcasting services;

                            with the use of the broadcasting services bands; and

                     (b)  allot, or empower the ACMA to allot, those channels to:

                              (i)  particular commercial television broadcasting licensees; or

                             (ii)  particular national broadcasters; or

                            (iii)  particular providers of television broadcasting services (other than commercial television broadcasting licensees or national broadcasters);

                            as the case requires; and

                     (c)  determine the characteristics, including technical specifications, of the transmission of each of the following services:

                              (i)  commercial television broadcasting services;

                             (ii)  national television broadcasting services;

                            (iii)  other television broadcasting services;

                            using those channels; and

                     (d)  determine, or empower the ACMA to determine, any technical limitations on the use of a particular channel that the ACMA considers should be applicable; and

                     (e)  determine, or empower the ACMA to determine, whether the use of a particular channel depends on any event or circumstances that the ACMA considers should be applicable.

          (1C)  A licence area plan prepared under subsection (1B) is to be known as a television licence area plan.

          (1D)  A television licence area plan may allot, or empower the ACMA to allot, different channels to:

                     (a)  a particular commercial television broadcasting licensee; or

                     (b)  a particular national broadcaster; or

                     (c)  a particular provider of a television broadcasting service (other than a commercial television broadcasting licensee or a national broadcaster);

for different periods.

          (1E)  A television licence area plan may allot, or empower the ACMA to allot, 2 or more channels to:

                     (a)  a particular commercial television broadcasting licensee; or

                     (b)  a particular national broadcaster; or

                     (c)  a particular provider of a television broadcasting service (other than a commercial television broadcasting licensee or a national broadcaster).

           (1F)  A television licence area plan must be consistent with the relevant frequency allotment plan.

          (1G)  A television licence area plan does not need to identify a particular television broadcasting service by name.

          (1H)  When the television licence area plan for a particular area comes into force:

                     (a)  subsection (1) ceases to apply to:

                              (i)  commercial television broadcasting services; and

                             (ii)  national television broadcasting services; and

                            (iii)  other television broadcasting services;

                            provided in the area; and

                     (b)  if:

                              (i)  immediately before the television licence area plan came into force, a licence area plan (the existing licence area plan) prepared under subsection (1) was in force for the area; and

                             (ii)  the existing licence area plan relates wholly to television broadcasting services;

                            the existing licence area plan ceases to have effect; and

                     (c)  if:

                              (i)  immediately before the television licence area plan came into force, a licence area plan (the existing licence area plan) prepared under subsection (1) was in force for the area; and

                             (ii)  the existing licence area plan relates partly to television broadcasting services and partly to other broadcasting services;

                            the existing licence area plan ceases to have effect to the extent to which it relates to television broadcasting services.

           (1J)  The television licence area plan for an area that is the licence area of a commercial television broadcasting licence must:

                     (a)  not come into force before the end of the simulcast period, or the simulcast‑equivalent period, for the area; and

                     (b)  come into force before the designated re‑stack day for the area.

          (1K)  For the purposes of this Act, the designated re‑stack day for an area is:

                     (a)  31 December 2014; or

                     (b)  if the Minister, by writing, specifies a later day for the area—that later day.

          (1L)  The Minister must not specify a day under paragraph (1K)(b) unless the Minister is satisfied that a failure to specify the day would be likely to result in significant difficulties of a technical or engineering nature for:

                     (a)  a commercial television broadcasting licensee; or

                     (b)  a national broadcaster; or

                     (c)  a provider of a television broadcasting service (other than a commercial television broadcasting licensee or a national broadcaster).

         (1M)  Sections 23 and 27 have effect as if a function or power conferred on the ACMA by a television licence area plan were a function conferred on the ACMA by this section.

Variation

             (2)  The ACMA may, by legislative instrument, vary a licence area plan.

             (3)  If:

                     (a)  a review is conducted under section 35A; and

                     (b)  after the completion of the report of the review, the Minister is satisfied that a licence area plan should be varied in accordance with the recommendations in the report;

the Minister may give the ACMA a written direction requiring the ACMA to vary the licence area plan as specified in the direction.

             (4)  Subsection (3) does not limit subsection (2).

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

             (6)  Sections 23 and 27 do not apply in relation to anything done by the ACMA in compliance with a direction under subsection (3).

Planning criteria—before designated re‑stack day

             (7)  Paragraphs 23(a) and (b) do not apply in relation to:

                     (a)  the preparation of a television licence area plan for a particular area; or

                     (b)  the variation of a television licence area plan for a particular area; or

                     (c)  the performance of a function, or the exercise of a power, by the ACMA under a television licence area plan for a particular area;

before the designated re‑stack day for the area.

Note:          For designated re‑stack day, see subsection 26(1K).

Ministerial direction

             (8)  The Minister may, by legislative instrument, direct the ACMA about the exercise of its powers to make or vary a television licence area plan for a particular area.

             (9)  The ACMA must comply with a direction under subsection (8).

           (10)  Subsections (8) and (9) cease to have effect in relation to a particular area at the start of the designated re‑stack day for the area.

Legislative instruments

           (11)  If a determination made by the ACMA under a television licence area plan is in writing, the determination is not a legislative instrument.

           (12)  An instrument under paragraph (1K)(b) is not a legislative instrument.

Definitions

           (13)  In this section:

national television broadcasting service has the same meaning as in Schedule 4.

simulcast‑equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

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

Note:          For designation of licence areas, see section 29.

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

             (1)  If:

                     (a)  a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2007; and

                     (b)  the licence authorises the licensee to provide a HDTV multi‑channelled commercial television broadcasting service in the licence area;

the relevant licence area plan is not required to deal with the HDTV multi‑channelled commercial television broadcasting service.

          (1A)  If:

                     (a)  a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2007; and

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

the relevant licence area plan is not required to deal with the SDTV multi‑channelled commercial television broadcasting service.

             (3)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

relevant licence area plan means the relevant licence area plan prepared under subsection 26(1).

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

simulcast‑equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

26AA  Compliance with television licence area plan

             (1)  If:

                     (a)  a television licence area plan is applicable to the transmission of one or more commercial television broadcasting services in a particular area; and

                     (b)  those services are provided under a particular commercial television broadcasting licence;

the licensee must not transmit any of those commercial television broadcasting services in that area otherwise than in accordance with the television licence area plan.

             (2)  If:

                     (a)  a television licence area plan is applicable to the transmission of one or more national television broadcasting services in a particular area; and

                     (b)  those services are provided by a particular national broadcaster;

the national broadcaster must not transmit any of those national television broadcasting services in that area otherwise than in accordance with the television licence area plan.

             (3)  If:

                     (a)  a television licence area plan is applicable to the transmission of one or more television broadcasting services in a particular area; and

                     (b)  those services are not provided:

                              (i)  under a commercial television broadcasting licence; or

                             (ii)  by a national broadcaster;

the provider of those television broadcasting services must not transmit any of those services in that area otherwise than in accordance with the television licence area plan.

             (4)  In this section:

national television broadcasting service has the same meaning as in Schedule 4.

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

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

             (1)  Licence area plans are not required to deal with SDTV multi‑channelled national television broadcasting services.

          (1A)  Licence area plans are not required to deal with HDTV multi‑channelled national television broadcasting services.

             (3)  In this section:

HDTV multi‑channelled national television broadcasting service has the same meaning as in Schedule 4.

licence area plan means a licence area plan prepared under subsection 26(1).

SDTV multi‑channelled national television broadcasting service has the same meaning as in Schedule 4.

simulcast‑equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

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

Commercial radio broadcasting services

             (1)  If:

                     (a)  a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

                     (b)  the licence authorises the licensee to provide digital commercial radio broadcasting services in the licence area;

the relevant licence area plan is not required to deal with those services.

             (2)  If:

                     (a)  the ACMA allocates a digital commercial radio broadcasting licence in accordance with subsection 35D(3); and

                     (b)  the licence authorises the licensee to provide digital commercial radio broadcasting services in the licence area;

the relevant licence area plan is not required to deal with those services.

Community radio broadcasting services

             (3)  If:

                     (a)  a designated community radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence; and

                     (b)  the licence authorises the licensee to provide digital community radio broadcasting services in the licence area;

the relevant licence area plan is not required to deal with those services.

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

             (1)  This section applies if a licence area plan deals with:

                     (a)  digital commercial radio broadcasting services; or

                     (b)  digital community radio broadcasting services; or

                     (c)  digital national radio broadcasting services.

             (2)  The licence area plan is not required to identify:

                     (a)  individual digital commercial radio broadcasting services; or

                     (b)  individual digital community radio broadcasting services; or

                     (c)  individual digital national radio broadcasting services.

             (3)  It is sufficient if the licence area plan deals collectively with:

                     (a)  the digital commercial radio broadcasting services; and

                     (b)  the digital community radio broadcasting services; and

                     (c)  the digital national radio broadcasting services;

that, from time to time, are, or are to be, transmitted under the digital radio multiplex transmitter licence or licences issued, or to be issued, in relation to the area concerned.

27  Processes to be public

             (1)  In performing its functions under sections 24, 25 and 26, the ACMA must make provision for wide public consultation.

Consultation—decisions relating to television licence area plans

          (1A)  Subsection (1) does not apply to:

                     (a)  the preparation of a television licence area plan for a particular area; or

                     (b)  the variation of a television licence area plan for a particular area; or

                     (c)  the performance of a function, or the exercise of a power, by the ACMA under a television licence area plan for a particular area; or

                     (d)  the variation of a frequency allotment plan, to the extent that the variation:

                              (i)  relates to the determination of the number of channels that are to be available in a particular area to provide television broadcasting services; and

                             (ii)  was made in connection with the preparation or variation of a television licence area plan for the area;

before the designated re‑stack day for the area.

Note:          For designated re‑stack day, see subsection 26(1K).

          (1B)  If, before the designated re‑stack day for a particular area, the ACMA takes any of the following actions:

                     (a)  the ACMA prepares a television licence area plan for the area;

                     (b)  the ACMA varies a television licence area plan for the area;

                     (c)  the ACMA performs a function, or exercises a power, under a television licence area plan for the area;

                     (d)  the ACMA varies a frequency allotment plan, to the extent that the variation:

                              (i)  relates to the determination of the number of channels that are to be available in the area to provide television broadcasting services; and

                             (ii)  was made in connection with the preparation or variation of a television licence area plan for the area;

the ACMA must, in taking the relevant action, make provision for consultation with:

                     (e)  commercial television broadcasting licensees who are likely to be affected by the preparation or variation of the plan; and

                      (f)  national broadcasters; and

                     (g)  community television broadcasting licensees who are likely to be affected by the preparation or variation of the plan; and

                     (h)  such other persons (if any) as the ACMA considers appropriate.

Note:          For designated re‑stack day, see subsection 26(1K).

Record‑keeping requirements

             (2)  The ACMA is to keep a record of, and make available for public inspection, all advice received by the ACMA, and all assumptions made by the ACMA, in performing its functions under sections 24, 25 and 26.

29  Designation of licence areas

             (1)  Before allocating a new commercial television broadcasting licence, commercial radio broadcasting licence or community broadcasting licence (other than a temporary community broadcasting licence) that is a broadcasting services bands licence, the ACMA is to designate one of the areas referred to in whichever of subsection 26(1) or (1B) is applicable as the licence area of the licence.

             (2)  If the ACMA varies a licence area plan, the ACMA may vary the designation of the relevant licence areas.

             (3)  This section does not apply to a licence allocated under section 38C.

30  ACMA may determine population figures

             (1)  The ACMA may, by notice in writing, determine the licence area population of a licence area.

             (2)  The ACMA may, by notice in writing, determine a number that is to be the population of Australia for the purposes of this Act.

             (3)  In making a determination, the ACMA is to have regard to the most recently published census count prepared by the Australian Statistician.

             (4)  The ACMA is to make a new determination of the licence area population of a licence area if the licence area is changed.

             (5)  The ACMA is to specify, in a determination of the licence area population of a licence area:

                     (a)  the percentage of the population of Australia constituted by that licence area population; and

                     (b)  the percentage of that licence area population that is attributable to an overlap area.

31  Minister may reserve capacity for national broadcasters or community broadcasters

             (1)  The Minister may notify the ACMA in writing that capacity in the broadcasting services bands is to be reserved for a specified number of:

                     (a)  national broadcasting services; or

                     (b)  community broadcasting services (other than services provided by temporary community broadcasting licensees);

but such a notice must not affect the provision of services in accordance with a licence already allocated by the ACMA under this Act or in accordance with a class licence.

             (2)  The ACMA must not, except in accordance with section 34, allocate a licence or determine a class licence that would allow the provision of broadcasting services (other than services provided by national broadcasters or community broadcasting licensees) which would make use of reserved capacity in the broadcasting services bands.

32  Reservations to be disallowable by the Parliament

                   A notice under section 31 is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

33  Development of technical planning guidelines

                   The ACMA is to develop in writing guidelines for the technical planning of individual services that use the broadcasting services bands as a means of delivery.

34  Alternative uses of broadcasting services bands

             (1)  If:

                     (a)  the ACMA has advertised under section 38 for applications for the allocation of one or more commercial television broadcasting licences or commercial radio broadcasting licences that are broadcasting services bands licences and that licence is not allocated or not all of those licences are allocated; or

                     (b)  broadcasting services bands spectrum is available in a licence area but has not been made available for commercial television broadcasting licences or commercial radio broadcasting licences; or

                     (c)  broadcasting services bands spectrum has been reserved under section 31 but has not been made available for the purpose for which it was reserved; or

                     (d)  broadcasting services bands spectrum is available but the ACMA has not commenced or completed planning and allocation processes in relation to that spectrum;

the ACMA may, by written instrument, determine that the part or parts of the radiofrequency spectrum concerned is or are available for allocation, for a period specified by the ACMA:

                     (e)  for the temporary transmission or the re‑transmission of programs; or

                    (ea)  to temporary community broadcasting licensees; or

                      (f)  to providers of subscription broadcasting services, subscription narrowcasting services or open narrowcasting services; or

                    (fa)  for the transmission of datacasting services on a temporary basis; or

                     (g)  for other purposes.

             (2)  In making a determination under subsection (1), the ACMA is to have regard to:

                     (a)  the possible future demand for the use of that part of the radiofrequency spectrum; and

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

             (3)  The ACMA may, by written instrument, determine that a part or parts of the broadcasting services bands spectrum is or are available for allocation for the purposes of the transmission of datacasting services.

             (4)  In making a determination under subsection (3), the ACMA is to have regard to:

                     (a)  the possible future demand for the use of that part of the radiofrequency spectrum for the provision of commercial television broadcasting services; and

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

          (4A)  Each part determined under subsection (3) must be 7 MHz. However, this rule does not prevent a particular part from being determined even if it adjoins:

                     (a)  another part that is also specified in the determination; or

                     (b)  2 other parts that are also specified in the determination.

             (5)  For the purposes of the application of this section to the availability of the spectrum before 1 January 2007, a datacasting service is a datacasting service provided under, and in accordance with the conditions of, a datacasting licence.

             (6)  For the purposes of the application of this section to the availability of the spectrum on or after 1 January 2007, a datacasting service is:

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

                     (b)  a datacasting service provided under any other licence allocated by the ACMA under this Act; or

                     (c)  a datacasting service provided in accordance with a class licence.

35  Notification of decisions under this Part

                   If the ACMA makes an instrument under this Part, the ACMA must publish in the Gazette a notice stating:

                     (a)  that the instrument has been made; and

                     (b)  the places where copies of the instrument can be purchased.

35A  Reviews relating to the uses of broadcasting services bands spectrum

Initial review

             (1)  Before 1 January 2013, the Minister must cause to be conducted a review of:

                     (a)  whether broadcasting services bands spectrum that is, or may become, available for allocation should be used for a particular area or areas of Australia to provide television broadcasting services; and

                     (b)  if so, what variations (if any) should be made to any licence area plans in force under section 26; and

                     (c)  whether broadcasting services bands spectrum that is, or may become, available for allocation should be used for a particular area or areas of Australia to provide services other than television broadcasting services; and

                     (d)  if so, what licensing requirements (if any) should apply in relation to those services.

Note:          For available for allocation, see subsection (9).

Subsequent reviews

             (2)  The Minister may cause to be conducted a review of:

                     (a)  whether broadcasting services bands spectrum that is, or may become, available for allocation should be used for a particular area or areas of Australia to provide television broadcasting services; and

                     (b)  if so, what variations (if any) should be made to any licence area plans in force under section 26; and

                     (c)  whether broadcasting services bands spectrum that is, or may become, available for allocation should be used for a particular area or areas of Australia to provide services other than television broadcasting services; and

                     (d)  if so, what licensing requirements (if any) should apply in relation to those services.

Note:          For available for allocation, see subsection (9).

             (3)  Subsection (2) does not authorise the conduct of a review before the completion of the report of a review conducted under subsection (1).

Conduct of a review

             (4)  The following matters must be taken into account in conducting a review under subsection (1) or (2):

                     (a)  the objects of this Act;

                     (b)  the matters referred to in paragraphs 23(a) to (f) in so far as they are relevant;

                     (c)  the availability of broadcasting services bands spectrum;

                     (d)  the impact (if any) that introducing new services may have on:

                              (i)  existing uses of the broadcasting services bands spectrum; or

                             (ii)  consumers;

                     (e)  in the case of a review under subsection (2)—the impact (if any) that introducing new services has had on:

                              (i)  existing uses of the broadcasting services bands spectrum; or

                             (ii)  consumers;

                      (f)  any other relevant matters.

             (5)  A review under subsection (1) or (2) must be conducted in a manner that provides for wide public consultation.

             (6)  The ACMA must make available such information as is reasonably necessary for the conduct of a review under subsection (1) or (2).

Report of a review

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

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

Meaning of available for allocation

             (9)  For the purposes of subsections (1) and (2), broadcasting services bands spectrum is, or may become, available for allocation if the ACMA has made, or may make, a determination under section 34 in relation to the spectrum.


 

Part 4Commercial television broadcasting licences and commercial radio broadcasting licences

Division 1Allocation of licences

35B  Allocation of new commercial television broadcasting licences

             (1)  If:

                     (a)  a review is conducted under section 35A; and

                     (b)  after the completion of the report of the review, the Minister is satisfied that a commercial television broadcasting licence should be allocated under section 36 for a particular area of Australia;

the Minister may, within 3 years after the completion of the report of the review, give the ACMA a written direction requiring the ACMA to allocate the licence under section 36 within a specified period.

             (2)  The ACMA must comply with a direction under subsection (1).

             (3)  The ACMA must not allocate a licence under section 36 unless the ACMA is directed to do so under subsection (1) of this section.

             (4)  If:

                     (a)  a direction is given under subsection (1); and

                     (b)  as a result, the ACMA allocates a commercial television broadcasting licence under section 36;

the licence is subject to the condition that the licensee may only provide commercial television broadcasting services in digital mode (within the meaning of Schedule 4).

35C  Digital radio moratorium

             (1)  During the digital radio moratorium period for a licence area, the ACMA must not allocate, under subsection 36(1), a commercial radio broadcasting licence to provide digital commercial radio broadcasting services in the licence area.

             (2)  Subsection (1) has effect subject to section 35D.

             (3)  For the purposes of this Act, the digital radio moratorium period for a licence area is the 6‑year period beginning at the start of the digital radio start‑up day for the licence area.

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

Scope

             (1)  This section applies to a commercial radio broadcasting licence if:

                     (a)  the licence was in force immediately before the digital radio start‑up day for the licence area; and

                     (b)  the licence authorises the licensee to provide any digital commercial radio broadcasting services in the licence area; and

                     (c)  at a particular time (the relevant time) during the digital radio moratorium period for the licence area, the ACMA is satisfied that the licensee is not providing at least one digital commercial radio broadcasting service under the licence in the licence area.

Licence ceases to authorise the provision of digital commercial radio broadcasting services etc.

             (2)  As soon as practicable after the relevant time, the ACMA must, by written notice given to the licensee, determine that:

                     (a)  the licence ceases to authorise the licensee to provide one or more digital commercial radio broadcasting services in the licence area; and

                     (b)  the licence is taken, for the purposes of this Act, to have been allocated as a licence to provide an analog commercial radio broadcasting service; and

                     (c)  despite subsection 36A(5), the licence is subject to the condition that the licensee may only provide an analog commercial radio broadcasting service under the licence.

ACMA must allocate a new commercial radio broadcasting licence for the licence area

             (3)  As soon as practicable after a notice under subsection (2) is given to a licensee of a commercial radio broadcasting licence (the first licence), the ACMA must:

                     (a)  allocate, under subsection 36(1), a single commercial radio broadcasting licence for the licence area of the first licence; and

                     (b)  allocate the licence as a licence to provide digital commercial radio broadcasting services in that licence area.

ACMA may specify circumstances in which a licensee is taken to be providing a digital commercial radio broadcasting service

             (4)  The ACMA may, by legislative instrument, specify circumstances in which a commercial radio broadcasting licensee is taken, for the purposes of paragraph (1)(c), to be providing a digital commercial radio broadcasting service under the licence in the licence area.

             (5)  A copy of an instrument under subsection (4) must be made available on the ACMA’s website.

36  ACMA to determine system for allocating licences

             (1)  The ACMA is to determine in writing a price‑based system for allocating:

                     (a)  commercial television broadcasting licences that are broadcasting services bands licences; and

                     (b)  commercial radio broadcasting licences that are broadcasting services bands licences.

             (2)  The Minister may give specific directions to the ACMA for the purpose of a determination.

             (3)  Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.

             (4)  If a commercial television broadcasting licence or a commercial radio broadcasting licence referred to in subsection (1) is allocated, the ACMA must, unless the allocation system adopted was public, publish in the Gazette the name of the successful applicant and the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.

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

Licences in force immediately before the commencement of this section

             (1)  If a commercial radio broadcasting licence was in force immediately before the commencement of this section, the licence is taken, for the purposes of this Act, to have been allocated as a licence to provide an analog commercial radio broadcasting service.

Licences allocated before the digital radio start‑up day for the licence area

             (2)  If the ACMA allocates a commercial radio broadcasting licence after the commencement of this section but before the digital radio start‑up day for the licence area, the licence must be allocated as a licence to provide an analog commercial radio broadcasting service.

Licences allocated on or after digital radio start‑up day for the licence area

             (3)  If the ACMA allocates a commercial radio broadcasting licence on or after the digital radio start‑up day for the licence area, the licence must be allocated as:

                     (a)  a licence to provide an analog commercial radio broadcasting service; or

                     (b)  a licence to provide digital commercial radio broadcasting services.

Licence conditions

             (4)  Subject to subsection (5), if a commercial radio broadcasting licence is or was allocated as a licence to provide an analog commercial radio broadcasting service, the licence is subject to the condition that the licensee may only provide an analog commercial radio broadcasting service under the licence.

             (5)  If:

                     (a)  a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

                     (b)  the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;

subsection (4) ceases to apply in relation to the licence at the start of the digital radio start‑up day for the licence area.

             (6)  If a commercial radio broadcasting licence is allocated as a licence to provide digital commercial radio broadcasting services, the licence is subject to the condition that the licensee may only provide digital commercial radio broadcasting services under the licence.

Section 35D

             (7)  This section has effect subject to section 35D.

Subsection 40(1) licences

             (8)  This section does not apply to a commercial radio broadcasting licence that is or was allocated under subsection 40(1).

37  When licences must not be allocated

             (1)  A licence is not to be allocated to an applicant if:

                     (a)  the applicant is not a company that is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital; or

                     (b)  the ACMA decides that subsection 41(2) applies to the applicant.

             (2)  Paragraph (1)(b) does not require the ACMA to consider the application of section 41 in relation to an applicant before allocating a licence to the applicant.

38  ACMA to advertise for applications for certain licences

             (1)  Where the ACMA is going to allocate one or more commercial television broadcasting licences or commercial radio broadcasting licences referred to in subsection 36(1), the ACMA is to advertise, in a manner determined by the ACMA, for applications for licences of that kind, and is to include in the advertisements:

                     (a)  the date before which applications must be received by the ACMA; and

                     (b)  a statement specifying how details of:

                              (i)  the system determined under section 36; and

                             (ii)  the conditions that are to apply to the licence; and

                            (iii)  the licence area of the licence, the licence area population of the licence and any areas of overlap with other licence areas;

                            can be obtained.

             (2)  Applications must:

                     (a)  be in accordance with a form approved in writing by the ACMA; and

                     (b)  be accompanied by the application fee determined in writing by the ACMA.

38A  Additional commercial television licences in single markets

Circumstances in which existing licensee may apply for additional licence

             (1)  If:

                     (a)  a particular licence area is the licence area of only one commercial television broadcasting licence (the parent licence) that is in force; and

                    (aa)  the parent licence is not a licence allocated under section 38C; and

                     (b)  additional commercial television broadcasting licences can be allocated for the licence area;

the existing licensee may apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.

ACMA must grant additional licence

             (2)  As soon as practicable, the ACMA must allocate an additional commercial television broadcasting licence to the existing licensee for the licence area, so long as:

                     (a)  all of the following conditions are satisfied:

                              (i)  no licence for the licence area previously allocated under this section to the existing licensee has been cancelled because of a breach of the condition set out in paragraph 7(1)(i) of Schedule 2;

                             (ii)  no licence for the licence area previously held by the existing licensee has been cancelled because of a breach of the condition set out in subsection (9);

                            (iii)  no licence for the licence area previously held by the existing licensee has been surrendered; or

                     (b)  both:

                              (i)  paragraph (a) does not apply; and

                             (ii)  the ACMA is satisfied that there are exceptional circumstances.

Amalgamation of licence areas in some cases

             (7)  If:

                     (a)  more than 30% of the licence area population of a licence area is attributable to an overlap area; or

                     (b)  a licence area is entirely within another licence area;

this section applies as if the 2 licence areas were one.

Fee for additional licence

             (8)  On allocation of the additional licence, the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.

Licence conditions

             (9)  On the allocation of the additional licence, it becomes a condition of both the parent licence and the additional licence that the licensee will continue to provide at least one service under each of those licences for at least 2 years after the date of allocation of the additional licence.

Restrictions on transfer of licences

           (10)  During the period of 2 years after the date of allocation of the additional licence, any attempt by any person to transfer either the parent licence or the additional licence is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.

Section 37 restrictions apply

           (11)  This section has effect subject to section 37.

38B  Additional commercial television licences in 2‑station markets

             (1)  If:

                     (a)  a particular licence area is the licence area of only 2 commercial television broadcasting licences (the parent licences) that are in force; and

                     (c)  an additional commercial television broadcasting licence can be allocated for the licence area; and

                    (ca)  the ACMA, by notice published in the Gazette, invites:

                              (i)  the existing licensees to give the ACMA a joint written notice under paragraph (d); and

                             (ii)  each existing licensee to give the ACMA a written notice under paragraph (e);

                            during the period specified in the notice;

then, within the period specified in the paragraph (ca) notice:

                     (d)  the existing licensees may give the ACMA a joint written notice stating that:

                              (i)  a company specified in the notice (the joint‑venture company) will apply for an additional commercial television broadcasting licence for the licence area; and

                             (ii)  the joint‑venture company is jointly owned by the existing licensees; and

                            (iii)  the joint‑venture company is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital; or

                     (e)  each existing licensee may give the ACMA a written notice stating that the licensee will apply separately for an additional commercial television broadcasting licence for the licence area.

          (1A)  A notice under paragraph (1)(ca) is not a legislative instrument.

Application by joint‑venture company

             (2)  If a notice is given under paragraph (1)(d), the joint‑venture company may, within 12 months after the notice is given, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.

Separate applications by existing licensees

             (3)  If an existing licensee gives a notice under paragraph (1)(e), the licensee may, within 12 months after the notice is given, apply in writing to the ACMA for an additional commercial television broadcasting licence for the licence area.

Allocation of additional licence to joint‑venture company

             (5)  As soon as practicable after receiving an application under subsection (2), the ACMA must allocate an additional commercial television broadcasting licence to the joint‑venture company for the licence area, so long as the ACMA is satisfied that the joint‑venture company is jointly owned by the existing licensees.

Allocation of additional licence to existing licensee

             (6)  If the ACMA has received applications from both of the existing licensees under subsection (3), the ACMA must allocate an additional commercial television broadcasting licence to one of those licensees for the licence area in accordance with a price‑based system determined under subsection (10).

             (7)  If:

                     (a)  each existing licensee gives a notice under paragraph (1)(e); and

                     (b)  by the end of the 12‑month period beginning at the time when the notice is given:

                              (i)  the ACMA has received an application from only one existing licensee (the first licensee) under subsection (3); and

                             (ii)  the ACMA has not received a notice from the other existing licensee stating that it will not be applying under subsection (3);

the ACMA must, as soon as practicable after the end of that 12‑month period, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.

             (8)  If:

                     (a)  each existing licensee gives a notice under paragraph (1)(e); and

                     (b)  before the end of the 12‑month period beginning at the time when the notice is given, the ACMA receives:

                              (i)  an application from one existing licensee (the first licensee) under subsection (3); and

                             (ii)  a notice from the other existing licensee stating that it will not be applying under subsection (3);

the ACMA must, as soon as practicable after both have been received, allocate an additional commercial television broadcasting licence to the first licensee for the licence area.

             (9)  If only one existing licensee gives a notice under paragraph (1)(e), then, as soon as practicable after receiving an application under subsection (3) from that licensee, the ACMA must allocate an additional commercial television broadcasting licence to that licensee for the licence area.

Price‑based system for allocating licences where separate applications have been received

           (10)  The ACMA may determine in writing a price‑based system for allocating commercial television broadcasting licences under subsection (6).

           (11)  The Minister may give specific directions to the ACMA for the purpose of a determination.

           (12)  Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.

           (13)  If a commercial television broadcasting licence is allocated under subsection (6), the ACMA must, unless the allocation system adopted was public, publish in the Gazette:

                     (a)  the name of the successful applicant; and

                     (b)  the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.

Amalgamation of licence areas in some cases

           (14)  The ACMA may, by writing, determine that, if:

                     (a)  more than 30% of the licence area population of a specified licence area is attributable to a specified overlap area; or

                     (b)  a specified licence area is entirely within another specified licence area;

this section applies as if the 2 licence areas were one.

        (14A)  If a determination is made under subsection (14) for 2 licence areas that are remote licence areas (within the meaning of Schedule 4) because of paragraph (14)(b), this section applies as if the single licence area referred to in subsection (14) were the licence area that is entirely within the other licence area.

           (15)  A determination under subsection (14) has effect accordingly.

           (16)  A determination under subsection (14) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Fee for additional licence

           (17)  On allocation of the additional licence under subsection (5), (7), (8) or (9), the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.

Licence conditions

           (18)  Each additional licence allocated under this section is subject to the following conditions:

                     (a)  the licensee may only provide commercial television broadcasting services in digital mode (within the meaning of Schedule 4); and

                     (b)  if the licence was allocated before the commencement of section 38C and the licence area for the licence is wholly outside a remote licence area (within the meaning of Schedule 4)—the licensee will commence to provide at least one commercial television broadcasting service in SDTV digital mode (within the meaning of Schedule 4) by whichever is the earlier of the following times:

                              (i)  the time that is notified in writing to the licensee by the ACMA;

                             (ii)  the start of 1 January 2004; and

                     (c)  if the licence was allocated before the commencement of section 38C and the licence area for the licence is not of the kind mentioned in paragraph (b)—the licensee will commence to provide at least one commercial television broadcasting service in SDTV digital mode (within the meaning of Schedule 4) within 1 year of being allocated the licence or within such longer period as is notified in writing by the ACMA.

           (19)  Paragraphs 7(1)(i), 7(1)(l) and 7(1)(m) of Schedule 2 do not apply to an additional licence allocated under this section before the commencement of section 38C.

        (19A)  Paragraphs 7(1)(l) and (m) of Schedule 2 do not apply to an additional licence allocated under this section after the commencement of section 38C.

           (20)  On the allocation of an additional licence under subsection (5), it becomes a condition of:

                     (a)  the additional licence; and

                     (b)  each parent licence;

that the licensee concerned will continue to provide at least one service under the licence concerned for at least 2 years after the earliest occasion on which the licensee of the additional licence commences to provide a commercial television broadcasting service under the additional licence.

           (21)  On the allocation of an additional licence under subsection (6), (7), (8) or (9), it becomes a condition of:

                     (a)  the additional licence; and

                     (b)  the parent licence concerned;

that the licensee will continue to provide at least one service under the licence concerned for at least 2 years after the earliest occasion on which the licensee of the additional licence commences to provide a commercial television broadcasting service under the additional licence.

        (21A)  The condition specified in subsection (21B) applies if:

                     (a)  a commercial television broadcasting licence is allocated to a joint‑venture company under subsection (5); and

                     (b)  the licence is transferred to another company (the transferee company); and

                     (c)  an election is in force under subclause 6(7B) of Schedule 4 in relation to any or all of the commercial television broadcasting services provided under the licences referred to in subsection (1) as the parent licences.

        (21B)  The licence held by the transferee company is subject to the condition that the transferee company will continue to transmit at least one commercial television broadcasting service provided under a parent licence in relation to which that election is in force.

Restrictions on transfer of licences

           (22)  During the period of 2 years after the date of allocation of an additional licence under subsection (5), any attempt by any person to transfer the additional licence is of no effect.

           (23)  During the period of 2 years after the date of allocation of an additional licence under subsection (6), (7), (8) or (9), any attempt by any person to transfer either:

                     (a)  the additional licence; or

                     (b)  the parent licence concerned;

is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.

Section 37 restrictions apply

           (24)  This section has effect subject to section 37.

Jointly owned company

           (25)  For the purposes of this section, a company (the first company) is jointly owned by 2 other companies if, and only if, each share in the first company is beneficially owned by either or both of those other companies.

38C  Commercial television broadcasting licences—services provided with the use of a satellite

             (1)  The following table has effect:

 

Licence areas and eligible joint venturers

 

Column 1

Column 2

Column 3

Item

Licence area for a commercial television broadcasting licence allocated, or to be allocated, under this section

Description of the licence area

Eligible joint venturers for the licence area

1

South Eastern Australia TV3

The area consisting of New South Wales, Victoria, South Australia, Tasmania, the Australian Capital Territory, Norfolk Island and the Jervis Bay Territory.

The commercial television broadcasting licensees for the following licence areas:

(a) Remote Central and Eastern Australia TV1;

(b) Remote Central and Eastern Australia TV2;

(c) Mt Isa TV1.

2

Northern Australia TV3

The area consisting of Queensland, the Northern Territory and the Coral Sea Islands Territory.

The commercial television broadcasting licensees for the following licence areas:

(a) Remote Central and Eastern Australia TV1;

(b) Remote Central and Eastern Australia TV2;

(c) Mt Isa TV1.

3

Western Australia TV3

The area consisting of Western Australia, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.

The commercial television broadcasting licensees for the following licence areas:

(a) Remote and Regional WA TV1;

(b) Western Zone TV1;

(c) Kalgoorlie TV1;

(d) Geraldton TV1;

(e) South West and Great Southern TV1.

Joint‑venture company

             (2)  Two or more of the eligible joint venturers for a licence area specified in column 1 of the table in subsection (1) may, during whichever of the following periods is applicable:

                     (a)  in the case of the South Eastern Australia TV3 licence area—the 28‑day period beginning at the commencement of this section;

                     (b)  otherwise—the period:

                              (i)  beginning at the commencement of this section; and

                             (ii)  ending 6 months before the start of the earliest applicable terrestrial digital television switch‑over date for the licence area;

give the ACMA a joint written notice stating that:

                     (c)  a company specified in the notice (the joint‑venture company) will apply under subsection (3) for a commercial television broadcasting licence for the licence area; and

                     (d)  the joint‑venture company is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital.

Application by joint‑venture company

             (3)  If a notice is given under subsection (2) in relation to a licence area specified in column 1 of the table in subsection (1), the joint‑venture company must:

                     (a)  apply in writing to the ACMA for a commercial television broadcasting licence for the licence area; and

                     (b)  do so within 28 days after the notice is given.

Allocation of licence to joint‑venture company

             (4)  If the ACMA receives an application under subsection (3) that relates to a licence area, the ACMA must:

                     (a)  allocate a commercial television broadcasting licence to the joint‑venture company for the licence area; and

                     (b)  do so within 28 days after the application is received.

             (5)  Subsection (4) has effect subject to section 37.

Special purpose company

             (6)  If no notice is given under subsection (2) in relation to a licence area specified in column 1 of the table in subsection (1), an eligible joint venturer for the licence area may, within 28 days after the end of whichever of the periods mentioned in paragraphs (2)(a) and (b) is applicable, give the ACMA a written notice stating that:

                     (a)  a company specified in the notice (the special purpose company) will apply under subsection (7) for a commercial television broadcasting licence for the licence area; and

                     (b)  the special purpose company is a wholly‑owned subsidiary of the eligible joint venturer; and

                     (c)  the special purpose company is registered as a company under Part 2A.2 of the Corporations Act 2001 and has a share capital.

Application by special purpose company

             (7)  If a notice is given under subsection (6), the special purpose company must:

                     (a)  apply in writing to the ACMA for a commercial television broadcasting licence for the licence area specified in the notice; and

                     (b)  do so within 28 days after the notice is given.

Allocation of licence to special purpose company

             (8)  If only one special purpose company makes an application under subsection (7) in relation to a licence area specified in column 1 of the table in subsection (1), the ACMA must:

                     (a)  allocate a commercial television broadcasting licence to the special purpose company for the licence area; and

                     (b)  do so within 28 days after the application is received.

             (9)  If the ACMA receives applications from 2 or more special purpose companies under subsection (7) in relation to a licence area specified in column 1 of the table in subsection (1), the ACMA must allocate a commercial television broadcasting licence to one of those companies for the licence area in accordance with a price‑based system determined under subsection (11).

           (10)  Subsections (8) and (9) have effect subject to section 37.

Price‑based system for allocating licences where 2 or more applications have been received

           (11)  The ACMA may, by written instrument, determine a price‑based system for allocating commercial television broadcasting licences under subsection (9).

           (12)  A instrument made under subsection (11) is not a legislative instrument.

           (13)  The Minister may, by legislative instrument, give specific directions to the ACMA in relation to the power conferred by subsection (11). Directions may be to include in a determination specified reserve prices for licences, and those reserve prices may be different for licences in different licence areas.

           (14)  If a commercial television broadcasting licence is allocated under subsection (9), the ACMA must, unless the price‑based allocation system adopted was public, publish in the Gazette:

                     (a)  the name of the successful applicant; and

                     (b)  the amount that the applicant agreed to pay to the Commonwealth for the allocation of the licence.

Cancellation of licence—services not provided

           (15)  If:

                     (a)  the licensee of a licence allocated under this section is contravening a licence condition set out in:

                              (i)  clause 7B of Schedule 2; or

                             (ii)  clause 7C of Schedule 2; and

                     (b)  the ACMA is satisfied that the contravention is not due to:

                              (i)  technical circumstances that are beyond the licensee’s control; or

                             (ii)  unforeseen circumstances that are beyond the licensee’s control; or

                            (iii)  circumstances specified in the regulations; and

                     (c)  the ACMA gives the licensee a written notice warning the licensee that, if the contravention continues for 30 days, the licence may be cancelled; and

                     (d)  30 days pass after the notice is given, and the contravention continues;

the ACMA must, by written notice given to the licensee, cancel the licence.

           (16)  The cancellation takes effect:

                     (a)  when the notice of cancellation is given to the licensee; or

                     (b)  if a later time is specified in the notice of cancellation—at that later time.

Allocation of licence after cancellation etc.

           (17)  If:

                     (a)  the ACMA gives a notice under subsection (15) to a licensee, cancelling the licence for a licence area; or

                     (b)  both:

                              (i)  no notice is given under subsection (2) in relation to a licence area; and

                             (ii)  no notice is given under subsection (6) in relation to a licence area; or

                     (c)  a joint‑venture company for a licence area contravenes subsection (3); or

                     (d)  both:

                              (i)  there is only one special purpose company for a licence area; and

                             (ii)  the special purpose company contravenes subsection (7); or

                     (e)  both:

                              (i)  there are 2 or more special purpose companies for a licence area; and

                             (ii)  each of those special purpose companies contravene subsection (7);

the ACMA must, within 45 days after:

                      (f)  if paragraph (a) applies—the giving of the notice; or

                     (g)  if paragraph (b) applies—the the last day on which a notice could have been given under subsection (6) in relation to the licence area; or

                     (h)  if paragraph (c), (d) or (e) applies—the contravention;

advertise, in a manner determined by the ACMA, for applications for a licence to be allocated under subsection (23) for the licence area.

           (18)  Before commencing to advertise under subsection (17), the ACMA must, by legislative instrument, determine the eligibility requirements that must be met by persons applying for a licence in response to such an advertisement.

           (19)  The eligibility requirements determined under subsection (18) must include that the applicant has the capacity to provide the services that the licensee will be required to provide under clauses 7B, 7C and 7D of Schedule 2. This subsection does not limit other eligibility requirements that may be determined under subsection (18).

           (20)  The Minister may, by legislative instrument, direct the ACMA about the exercise of its powers under subsection (18).

           (21)  The ACMA must include in an advertisement under subsection (17):

                     (a)  a description of the matter mentioned in the applicable paragraph of subsection (17); and

                     (b)  the date on or before which applications must be received by the ACMA (the applications closing date); and

                     (c)  a statement specifying how details of:

                              (i)  the licence area for the licence; and

                             (ii)  the eligibility requirements; and

                            (iii)  the conditions that will apply to the licence;

                            may be obtained.

           (22)  The applications closing date must be the 90th day after the day of publication of the first advertisement under subsection (17) that describes the contravention or cancellation concerned.

           (23)  If:

                     (a)  in response to an advertisement under subsection (17), the ACMA receives one or more applications for a licence; and

                     (b)  the applications were received on or before the applications closing date specified in the advertisement; and

                     (c)  the ACMA is satisfied that one or more of the applicants meets the eligibility requirements;

the ACMA must:

                     (d)  allocate the licence to one of the applicants referred to in paragraph (c); and

                     (e)  do so within 90 days after the applications closing date.

           (24)  Subsection (23) has effect subject to section 37.

Restrictions on transfer of licences

           (25)  During the period of 2 years after the date of allocation of a licence under this section, any attempt by any person to transfer the licence is of no effect.

Definitions

           (26)  In this section:

applicable terrestrial digital television switch‑over date has the same meaning as in clause 7H of Schedule 2.

wholly‑owned subsidiary has the same meaning as in the Corporations Act 2001.

39  Additional commercial radio licences in single markets

Conditions for allocation of additional licence

             (1)  If:

                     (a)  a particular licence area is the licence area of only one commercial radio broadcasting licence (the parent licence) that is in force; and

                     (b)  a service is being provided under the parent licence; and

                     (c)  the licence area for the parent licence does not have an excessive overlap area, as determined under subsection (5); and

                     (d)  the licensee requests the ACMA, in writing, to allocate to the licensee, for the same licence area, another commercial radio broadcasting licence that is a broadcasting services bands licence; and

                     (e)  in the opinion of the ACMA, suitable broadcasting services bands spectrum is available for providing another commercial radio broadcasting service in the same licence area;

the ACMA must allocate an additional licence to the applicant for the same licence area as soon as practicable.

Time limit for applications

             (2)  An application under subsection (1) must be made within 60 days after:

                     (a)  the commencement of this section; or

                     (b)  the time when paragraphs (1)(a), (b) and (c) are first satisfied in relation to the parent licence;

whichever is later.

             (3)  If the conditions in paragraphs (1)(a), (b), (c) and (e) are not all satisfied at the time when the application is made, but at a later time they are all satisfied, then the ACMA is under an obligation at that later time to allocate the additional licence (unless the application has been withdrawn).

Matters that ACMA must take into account

             (4)  The matters that the ACMA must take into account in forming an opinion for the purposes of paragraph (1)(e) include the following:

                     (a)  any relevant plan under section 25;

                     (b)  any relevant plan under section 26;

                     (c)  any relevant capacity that has been reserved under section 31.

Excessive overlap area

             (5)  The licence area for the parent licence has an excessive overlap area if:

                     (a)  more than 30% of the licence area population of the licence area of the parent licence is attributable to an area that overlaps with the licence area of another commercial radio broadcasting licence; and

                     (b)  at least one of the following situations exists:

                              (i)  more than 30% of the licence area population of the licence area of that other licence is also attributable to the area that overlaps with the licence area of the parent licence;

                             (ii)  more than one commercial radio broadcasting licence is in force with the same licence area as that other licence.

Technical specifications for additional licence

             (6)  The ACMA must make a determination in writing setting out the technical specifications that apply to the additional licence. The ACMA is not required to make the determination if a plan under section 26 applies to the licence area of the additional licence.

             (7)  For the purposes of this Act and section 109 of the Radiocommunications Act 1992, the technical specifications are taken to have been determined under section 26 of this Act.

Fee for additional licence

             (8)  On allocation of the additional licence, the applicant must pay to the ACMA a fee determined by the ACMA. The fee must not be more than the amount that, in the opinion of the ACMA, represents the costs (including planning costs) incurred by the ACMA in allocating the additional licence.

Licence conditions

             (9)  On the allocation of the additional licence, it becomes a condition of both the parent licence and the additional licence that the licensee will continue to provide services under those licences for at least 2 years after the date of allocation of the additional licence.

Restrictions on transfer of licences

           (10)  During the period of 2 years after the date of allocation of the additional licence, any attempt by any person to transfer either the parent licence or the additional licence is of no effect unless both of those licences are transferred at the same time by the same person to the same transferee.

Section 37 restrictions apply

           (11)  This section has effect subject to section 37.

Section 29 does not apply in some cases

           (12)  If the licence area of the parent licence is not provided for under a licence area plan under section 26, then section 29 does not apply to the allocation of the additional licence.

40  Allocation of other licences

             (1)  The ACMA may allocate to a person, on application in writing by the person, a commercial television broadcasting licence or a commercial radio broadcasting licence that is not a licence referred to in subsection 36(1).

          (1A)  Licences under subsection (1) are to be allocated on the basis of one licence per service.

             (2)  Before allocating a licence referred to in subsection (1), the ACMA is to designate a particular area in Australia as the licence area of the licence.

             (3)  Applications must:

                     (a)  be in accordance with a form approved in writing by the ACMA; and

                     (b)  be accompanied by the application fee determined in writing by the ACMA.

             (4)  If the ACMA makes a decision under subsection (1) or (2), the ACMA must publish in the Gazette details of the allocation or the designation of a licence area.

Referral of application to the Minister

             (5)  Before allocating a commercial television broadcasting licence under subsection (1), the ACMA must refer the application to the Minister.

             (6)  If an application for a commercial television broadcasting licence is referred to the Minister under subsection (5), the ACMA must not make a decision about the application until the Minister:

                     (a)  gives a direction under subsection (7) in relation to the application; or

                     (b)  gives a notice under subsection (9) in relation to the application.

             (7)  If:

                     (a)  an application for a commercial television broadcasting licence is referred to the Minister under subsection (5); and

                     (b)  the Minister is of the opinion that the proposed commercial television broadcasting service is likely to be contrary to the public interest;

the Minister must, by written notice given to the ACMA, direct the ACMA not to allocate the licence to the applicant.

             (8)  The ACMA must comply with a direction under subsection (7).

             (9)  If:

                     (a)  an application for a commercial television broadcasting licence is referred to the Minister under subsection (5); and

                     (b)  the Minister is not of the opinion that the proposed commercial television broadcasting service is likely to be contrary to the public interest;

the Minister must, by written notice given to the ACMA, inform the ACMA that he or she has no objection to the allocation of the licence to the applicant.

Minister may request additional information

           (10)  If an application is referred to the Minister under subsection (5), and the Minister considers that additional information is required before the Minister can decide whether to:

                     (a)  give a direction under subsection (7) in relation to the application; or

                     (b)  give a notice under subsection (9) in relation to the application;

the Minister may, by written notice given to the applicant within 30 days after the day on which the application is referred to the Minister, request the applicant to provide that information.

           (11)  If the Minister requests additional information under subsection (10), the Minister must give the ACMA a copy of the request.

Decision to be made within 60 days

           (12)  If the Minister does not, within 60 days after the day on which:

                     (a)  an application is referred to the Minister under subsection (5); or

                     (b)  if the Minister requests additional information under subsection (10)—that additional information is received;

do either of the following:

                     (c)  give a direction under subsection (7) in relation to the application;

                     (d)  give a notice under subsection (9) in relation to the application;

then the Minister is taken to have given a notice under subsection (9) in relation to the application.

Licence condition

           (13)  If the ACMA allocates a commercial television broadcasting licence under subsection (1), the licence is subject to the condition that the licensee may only provide the commercial television broadcasting service concerned in digital mode (within the meaning of Schedule 4).

41  When persons are regarded as suitable

             (1)  For the purposes of this Part, a company is a suitable licensee or a suitable applicant for a licence if the ACMA has not decided that subsection (2) applies to the company.

             (2)  The ACMA may, if it is satisfied that allowing a particular company to provide or continue to provide commercial broadcasting services under a licence would lead to a significant risk of:

                     (a)  an offence against this Act or the regulations being committed; or

                    (aa)  a breach of a civil penalty provision occurring; or

                     (b)  a breach of the conditions of the licence occurring;

decide that this subsection applies to the company.

             (3)  In deciding whether such a risk exists, the ACMA is to take into account:

                     (a)  the business record of the company; and

                     (b)  the company’s record in situations requiring trust and candour; and

                     (c)  the business record of each person who is, or would be, if a licence were allocated to the applicant, in a position to control the licence; and

                     (d)  the record in situations requiring trust and candour of each such person; and

                     (e)  whether the company, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations; and

                      (f)  whether a civil penalty order has been made against:

                              (i)  the company; or

                             (ii)  a person referred to in paragraph (c) or (d).

             (4)  This section does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).


 

Division 2Services authorised by licences

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

Licences in force immediately before 1 January 2007

             (1)  If:

                     (a)  a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2007; and

                     (b)  the licence authorised the licensee to provide a commercial television broadcasting service (the core commercial television broadcasting service) in the licence area;

the licence is taken to authorise the licensee to provide the following 2 services in the licence area:

                     (c)  the core commercial television broadcasting service;

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

during the period ending immediately before 1 January 2009.

Licences allocated on or after 1 January 2007

             (2)  If a commercial television broadcasting licence for a licence area is allocated on or after 1 January 2007 but before 1 January 2009, the licence authorises the licensee to provide the following 2 services in the licence area:

                     (a)  a commercial television broadcasting service (the core commercial television broadcasting service) transmitted in SDTV digital mode;

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

during the period ending immediately before 1 January 2009.

Licences allocated under subsection 40(1)

             (3)  This section does not apply to a commercial television broadcasting licence allocated under subsection 40(1).

Definitions

             (4)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

SDTV digital mode has the same meaning as in Schedule 4.

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

Licences in force immediately before 1 January 2009—general

             (1)  If:

                     (a)  a commercial television broadcasting licence for a licence area was in force immediately before 1 January 2009; and

                     (b)  the licence authorised the licensee to provide the following 2 services in the licence area:

                              (i)  the core commercial television broadcasting service;

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

the licence is taken to authorise the licensee to provide the following 3 services in the licence area:

                     (c)  the core commercial television broadcasting service;

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

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

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

          (1A)  Subsection (1) does not apply, after the commencement of section 38C, to:

                     (a)  an eligible parent licence; or

                     (b)  an eligible section 38A licence.

Note 1:       For eligible parent licence, see subsection (2E).

Note 2:       For eligible section 38A licence, see subsection (2E).

          (1B)  Subsection (1) does not apply to a remote area licence.

Licences allocated on or after 1 January 2009

             (2)  If a commercial television broadcasting licence for a licence area is allocated on or after 1 January 2009 but before the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

the licence authorises the licensee to provide the following 3 services in the licence area:

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

                     (d)  2 SDTV multi‑channelled commercial television broadcasting services;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

          (2A)  Subsection (2) does not apply, after the commencement of section 38C, to:

                     (a)  an eligible parent licence; or

                    (aa)  an eligible section 38A licence; or

                     (b)  an eligible section 38B licence.

Note 1:       For eligible parent licence, see subsection (2E).

Note 1A:    For eligible section 38A licence, see subsection (2E).

Note 2:       For eligible section 38B licence, see subsection (2E).

       (2AA)  Subsection (2) does not apply to a remote area licence.

Eligible parent licences in force immediately before 1 January 2009

          (2B)  If:

                     (a)  an eligible parent licence for a licence area was in force immediately before 1 January 2009; and

                     (b)  the eligible parent licence authorised the licensee to provide the following 3 services in the licence area:

                              (i)  the core commercial television broadcasting service;

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

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

the eligible parent licence is taken to authorise the licensee to provide the following services in the licence area:

                     (c)  the core commercial television broadcasting service;

                     (d)  either:

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

                             (ii)  2 SDTV multi‑channelled commercial television broadcasting services;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

Note:          For eligible parent licence, see subsection (2E).

Eligible parent licences allocated on or after 1 January 2009

          (2C)  If an eligible parent licence for a licence area is allocated on or after 1 January 2009 but before the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

the eligible parent licence is taken to authorise the licensee to provide:

                     (c)  the following services in the licence area:

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

                             (ii)  2 SDTV multi‑channelled commercial television broadcasting services; or

                     (d)  3 SDTV multi‑channelled commercial television broadcasting services in the licence area;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

Note:          For eligible parent licence, see subsection (2E).

Eligible section 38A licences in force immediately before 1 January 2009

       (2CA)  If:

                     (a)  an eligible section 38A licence for a licence area was in force immediately before 1 January 2009; and

                     (b)  the eligible section 38A licence authorised the licensee to provide the following 3 services in the licence area:

                              (i)  the core commercial television broadcasting service;

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

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

the eligible section 38A licence is taken to authorise the licensee to provide the following services in the licence area:

                     (c)  the core commercial television broadcasting service;

                     (d)  either:

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

                             (ii)  2 SDTV multi‑channelled commercial television broadcasting services;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

Note:          For eligible section 38A licence, see subsection (2E).

Eligible section 38A licences allocated on or after 1 January 2009

        (2CB)  If an eligible section 38A licence for a licence area is allocated on or after 1 January 2009 but before the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

the eligible section 38A licence is taken to authorise the licensee to provide:

                     (c)  the following services in the licence area:

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

                             (ii)  2 SDTV multi‑channelled commercial television broadcasting services; or

                     (d)  3 SDTV multi‑channelled commercial television broadcasting services in the licence area;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

Note:          For eligible section 38A licence, see subsection (2E).

Eligible section 38B licences

          (2D)  If an eligible section 38B licence for a licence area is allocated before the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

the eligible section 38B licence authorises the licensee to provide:

                     (c)  the following services in the licence area:

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

                             (ii)  2 SDTV multi‑channelled commercial television broadcasting services; or

                     (d)  3 SDTV multi‑channelled commercial television broadcasting services in the licence area;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

Note:          For eligible section 38B licence, see subsection (2E).

Remote area licences in force immediately before 1 January 2009

       (2DA)  If a remote area licence for a licence area was in force immediately before 1 January 2009, the remote area licence is taken to authorise the licensee to provide the following services in the licence area:

                     (a)  the core commercial television broadcasting service;

                     (b)  either:

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

                             (ii)  2 SDTV multi‑channelled commercial television broadcasting services;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

Remote area licences allocated on or after 1 January 2009

       (2DB)  If a remote area licence for a licence area is allocated on or after 1 January 2009 but before the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

the remote area licence authorises the licensee to provide:

                     (c)  the following services in the licence area:

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

                             (ii)  2 SDTV multi‑channelled commercial television broadcasting services; or

                     (d)  3 SDTV multi‑channelled commercial television broadcasting services in the licence area;

during the simulcast period, or the simulcast‑equivalent period, as the case may be, for the licence area.

Eligible parent licence, eligible section 38A licence and eligible section 38B licence

          (2E)  For the purposes of this section, if:

                     (a)  a person (the original licensee) is or was the licensee of a commercial television broadcasting licence (other than a commercial television broadcasting licence allocated under section 38A or subsection 38B(6), (7), (8) or (9)); and

                     (b)  the original licensee is or was allocated an additional commercial television broadcasting licence under section 38A; and

                     (c)  after the commencement of section 38C, the original licensee is allocated an additional commercial television broadcasting licence under subsection 38B(6), (7), (8) or (9); and

                     (d)  at a particular time, the licences mentioned in paragraphs (a), (b) and (c) are held by the same person (whether or not that person is the original licensee);

then, at that time:

                     (e)  the licence mentioned in paragraph (a) is an eligible parent licence; and

                      (f)  the licence mentioned in paragraph (b) is an eligible section 38A licence; and

                     (g)  the licence mentioned in paragraph (c) is an eligible section 38B licence.

Licences allocated under section 38C or subsection 40(1)

             (3)  This section does not apply to a commercial television broadcasting licence allocated under section 38C or subsection 40(1).

Definitions

             (4)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

remote area licence means a commercial television broadcasting licence for a remote licence area (within the meaning of Schedule 4).

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

simulcast‑equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

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

Licences in force immediately before the end of the simulcast period etc.

             (1)  If a commercial television broadcasting licence for a licence area was in force immediately before the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

then, after the end of the applicable period, the licence is taken to authorise the licensee to provide the following services in the licence area:

                     (c)  one or more HDTV multi‑channelled commercial television broadcasting services;

                     (d)  one or more SDTV multi‑channelled commercial television broadcasting services.

Licences allocated after the end of the simulcast period etc.

             (2)  If a commercial television broadcasting licence for a licence area is allocated after the end of whichever of the following periods is applicable:

                     (a)  the simulcast period for the licence area;

                     (b)  the simulcast‑equivalent period for the licence area;

the licence authorises the licensee to provide the following services in the licence area:

                     (c)  one or more HDTV multi‑channelled commercial television broadcasting services;

                     (d)  one or more SDTV multi‑channelled commercial television broadcasting services.

Licences allocated under section 38C or subsection 40(1)

             (3)  This section does not apply to a commercial television broadcasting licence allocated under section 38C or subsection 40(1).

Definitions

             (4)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

simulcast‑equivalent period has the same meaning as in Schedule 4.

simulcast period has the same meaning as in Schedule 4.

41CA  Services authorised by commercial television broadcasting licences allocated under section 38C

Authorised services

             (1)  A licence allocated under section 38C authorises the licensee to provide the following commercial television broadcasting services in the licence area:

                     (a)  if a commercial television broadcasting licensee (a related terrestrial licensee) for a related terrestrial licence area provides a HDTV multi‑channelled commercial television broadcasting service in the related terrestrial licence area—a HDTV multi‑channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;

                     (b)  if:

                              (i)  a commercial television broadcasting licensee (a related terrestrial licensee) for a related terrestrial licence area provides a SDTV multi‑channelled commercial television broadcasting service in the related terrestrial licence area; and

                             (ii)  the service is not the core/primary commercial television broadcasting service provided by the related terrestrial licensee;

                            a SDTV multi‑channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;

                     (c)  if:

                              (i)  a commercial television broadcasting licensee (a related terrestrial licensee) for a related terrestrial licence area provides a SDTV multi‑channelled commercial television broadcasting service in the related terrestrial licence area; and

                             (ii)  the service is the core/primary commercial television broadcasting service provided by the related terrestrial licensee;

                            a commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the related terrestrial licensee;

                     (d)  if a commercial television broadcasting licensee (a metropolitan licensee) for a metropolitan licence area provides a HDTV multi‑channelled commercial television broadcasting service in the metropolitan licence area—a HDTV multi‑channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;

                     (e)  if:

                              (i)  a commercial television broadcasting licensee (a metropolitan licensee) for a metropolitan licence area provides a SDTV multi‑channelled commercial television broadcasting service in the metropolitan licence area; and

                             (ii)  the service is not the core/primary commercial television broadcasting service provided by the metropolitan licensee;

                            a SDTV multi‑channelled commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;

                      (f)  if:

                              (i)  a commercial television broadcasting licensee (a metropolitan licensee) for a metropolitan licence area provides a SDTV multi‑channelled commercial television broadcasting service in the metropolitan licence area; and

                             (ii)  the service is the core/primary commercial television broadcasting service provided by the metropolitan licensee;

                            a commercial television broadcasting service the program content of which is the same, or substantially the same, as the service provided by the metropolitan licensee;

                     (g)  one or more SDTV multi‑channelled commercial television broadcasting services the program content of which consists wholly or primarily of programs provided, or required to be provided, to the licensee under subsection 43AA(1).

Program content

             (2)  In determining, for the purposes of this section, whether the program content of a commercial television broadcasting service provided by a licensee in a licence area is the same, or substantially the same, as the program content of another commercial television broadcasting service:

                     (a)  ignore the following:

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

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

                            (iii)  community information material or community promotional material;

                            (iv)  a weather bulletin;

                             (v)  any other similar material; and

                     (b)  ignore a news program; and

                     (c)  ignore any program the broadcasting of which in any jurisdiction in the licence area could result in the licensee:

                              (i)  committing an offence; or

                             (ii)  becoming liable to a civil penalty; or

                            (iii)  breaching an order or direction of a court; or

                            (iv)  being in contempt of court; and

                     (d)  ignore a program broadcast in circumstances specified in the regulations.

             (3)  In determining, for the purposes of:

                     (a)  paragraph (1)(c); or

                     (b)  paragraph (1)(f);

whether the program content of a commercial television broadcasting service provided by a licensee in a licence area is the same, or substantially the same, as the program content of another commercial television broadcasting service, assume that a program that provides coverage of an anti‑siphoning event is the same as a program that provides coverage of another anti‑siphoning event.

             (4)  Subsection (3) does not limit subsection (2).

SDTV multi‑channelled commercial television broadcasting service

             (5)  For the purposes of subsection (1), assume that paragraph 5A(1)(d) of Schedule 4 had not been enacted.

Providing an authorised service on Norfolk Island

          (5A)  A person authorised by a licence allocated under section 38C to provide a commercial television broadcasting service in a licence area including Norfolk Island may provide the service despite a law of Norfolk Island about broadcasting services.

Definitions

             (6)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

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.

related terrestrial licence area:

                     (a)  in relation to a licence allocated under section 38C for the South Eastern Australia TV3 licence area—means a licence area mentioned in column 3 of item 1 of the table in subsection 38C(1); or

                     (b)  in relation to a licence allocated under section 38C for the Northern Australia TV3 licence area—means a licence area mentioned in column 3 of item 2 of the table in subsection 38C(1); or

                     (c)  in relation to a licence allocated under section 38C for the Western Australia TV3 licence area—means a licence area mentioned in column 3 of item 3 of the table in subsection 38C(1).

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

41D  Services authorised by commercial radio broadcasting licences

Licences in force immediately before the commencement of this section

             (1)  If:

                     (a)  a commercial radio broadcasting licence was in force immediately before the commencement of this section; and

                     (b)  the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;

then, during the period:

                     (c)  beginning at the start of the day on which this section commences; and

                     (d)  ending immediately before the digital radio start‑up day for the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

Licences allocated on or after the commencement of this section

             (2)  If:

                     (a)  a commercial radio broadcasting licence is allocated on or after the commencement of this section but before the digital radio start‑up day for the licence area; and

                     (b)  the licence is allocated as a licence to provide an analog commercial radio broadcasting service in the licence area;

then, during the period:

                     (c)  beginning at the start of the day on which the licence is allocated; and

                     (d)  ending immediately before the digital radio start‑up day for the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

Licences in force immediately before the digital radio start‑up day for the licence area

             (3)  If:

                     (a)  a commercial radio broadcasting licence was in force immediately before the digital radio start‑up day for the licence area; and

                     (b)  the licence authorised the licensee to provide an analog commercial radio broadcasting service in the licence area;

then, on and after the digital radio start‑up day for the licence area, the licence is taken to authorise the licensee to provide the following services in the licence area:

                     (c)  the analog commercial radio broadcasting service;

                     (d)  one or more digital commercial radio broadcasting services.

Licences allocated on or after digital radio start‑up day for the licence area

             (4)  If:

                     (a)  a commercial radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and

                     (b)  the licence is allocated as a licence to provide an analog commercial radio broadcasting service in the licence area;

the licence is taken to authorise the licensee to provide that service in the licence area.

             (5)  If:

                     (a)  a commercial radio broadcasting licence is allocated on or after the digital radio start‑up day for the licence area; and

                     (b)  the licence is allocated as a licence to provide digital commercial radio broadcasting services in the licence area;

the licence is taken to authorise the licensee to provide one or more digital commercial radio broadcasting services in the licence area.

Section 35D

             (6)  This section has effect subject to section 35D.

Subsection 40(1) licences

             (7)  This section does not apply to a commercial radio broadcasting licence allocated under subsection 40(1).


 

Division 3Licence conditions

42  Conditions of commercial broadcasting licences

             (1)  Each commercial television broadcasting licence is subject to:

                     (a)  the conditions set out in Division 1 of Part 3 of Schedule 2; and

                     (b)  such other conditions as are imposed under section 43.

          (1A)  Each commercial television broadcasting licence allocated under section 38C is also subject to the conditions set out in Division 2 of Part 3 of Schedule 2.

             (2)  Each commercial radio broadcasting licence is subject to:

                     (a)  the conditions set out in Part 4 of Schedule 2; and

                     (b)  such other conditions as are imposed under section 43.

43  ACMA may impose additional conditions

             (1)  The ACMA may, by notice in writing given to a commercial television broadcasting licensee or a commercial radio broadcasting licensee, vary or revoke a condition of the licence or impose an additional condition on the licence.

             (2)  If the ACMA proposes to vary or revoke a condition or to impose a new condition, the ACMA must:

                     (a)  give to the licensee written notice of its intention; and

                     (b)  give to the licensee a reasonable opportunity to make representations to the ACMA in relation to the proposed action; and

                     (c)  publish the proposed changes in the Gazette.

             (3)  This section does not allow the ACMA to vary or revoke a condition set out in Part 3 or 4 of Schedule 2.

             (4)  If the ACMA varies or revokes a condition or imposes a new condition, the ACMA must publish the variation, the fact of the revocation or the new condition, as the case may be, in the Gazette.

             (5)  Action taken under subsection (1) must not be inconsistent with:

                     (a)  determinations and clarifications under section 19; or

                     (b)  conditions set out in Part 3 or 4 of Schedule 2.

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

             (1)  The ACMA must ensure that, at all times on and after 1 January 2008, there is in force under section 43 a condition that has the effect of requiring the licensee of a regional aggregated commercial television broadcasting licence to broadcast to each local area, during such periods as are specified in the condition, at least a minimum level of material of local significance.

             (2)  For the purposes of subsection (1), a regional aggregated commercial television broadcasting licence is a commercial television broadcasting licence for any of the following licence areas:

                     (a)  Northern New South Wales;

                     (b)  Southern New South Wales;

                     (c)  Regional Victoria;

                     (d)  Eastern Victoria;

                     (e)  Western Victoria;

                      (f)  Regional Queensland;

                     (g)  Tasmania.

             (3)  The condition must define local area and material of local significance for the purposes of the condition. The definition of material of local significance must be broad enough to cover news that relates directly to the local area concerned.

             (4)  To avoid doubt, this section does not:

                     (a)  prevent the condition from setting out different requirements for different types of material; or

                     (b)  prevent the condition from specifying periods that recur (for example, the hours between 7 am and 10 am Monday to Friday); or

                     (c)  prevent the condition from setting out different requirements for different periods; or

                     (d)  create any obligations under subsection 43(2) that would not exist apart from this section.

             (5)  Subsection 43(5) does not apply to the condition.

             (6)  This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.

43AA  Local news to be provided to section 38C licensees by regional commercial television broadcasting licensees

             (1)  A commercial television broadcasting licence for a regional licence area is subject to the condition that, if:

                     (a)  the licensee broadcasts a local news program in the licence area; and

                    (aa)  the licensee has not previously broadcast the program in the licence area; and

                     (b)  the licence area is wholly or partly included in the licence area of a licence allocated under section 38C;

the licensee of the regional commercial television broadcasting licence must:

                     (c)  provide the local news program to the licensee of the section 38C licence for broadcast by the section 38C licensee; and

                     (d)  do so:

                              (i)  simultaneously with the broadcast of the program by the licensee of the regional commercial television broadcasting licence; or

                             (ii)  as soon as practicable after the broadcast of the program by the licensee of the regional commercial television broadcasting licence.

             (2)  A program must be provided under subsection (1) by transmitting it in digital mode (within the meaning of Schedule 4).

             (3)  If:

                     (a)  apart from this subsection, a commercial television broadcasting licensee for a regional licence area (the regional licensee) is required by subsection (1) to provide a program to the licensee of a commercial television broadcasting licence allocated under section 38C; and

                     (b)  the regional licensee believes, on reasonable grounds, that the broadcasting of a part of the program in any jurisdiction in the licence area of the section 38C licence could result in the section 38C licensee:

                              (i)  committing an offence; or

                             (ii)  becoming liable to a civil penalty; or

                            (iii)  breaching an order or direction of a court; or

                            (iv)  being in contempt of court;

subsection (1) has effect as if the program did not include that part of the program.

          (3A)  If:

                     (a)  apart from this subsection, a commercial television broadcasting licensee for a regional licence area (the regional licensee) is required by subsection (1) to provide a program to the licensee of a commercial television broadcasting licence allocated under section 38C; and

                     (b)  the regional licensee believes, on reasonable grounds, that the broadcasting of the program in any jurisdiction in the licence area of the section 38C licence could result in the section 38C licensee:

                              (i)  committing an offence; or

                             (ii)  becoming liable to a civil penalty; or

                            (iii)  breaching an order or direction of a court; or

                            (iv)  being in contempt of court;

subsection (1) does not apply to the program.

       (3AA)  Subsection (1) does not require a licensee to provide a program to the licensee of a section 38C licence before the start date for the licence area of the section 38C licence.

          (3B)  A commercial television broadcasting licence for a regional licence area is subject to the condition that, if:

                     (a)  the licensee broadcasts a local news program in the licence area on 2 or more occasions; and

                     (b)  the licence area is wholly or partly included in the licence area of a licence allocated under section 38C;

the licensee of the regional commercial television broadcasting licence will take reasonable steps to ensure that the licensee of the regional commercial television broadcasting licence does not, on more than one occasion, provide the program to the section 38C licensee for broadcast by the section 38C licensee.

             (6)  This section does not apply to a commercial television broadcasting licence allocated under subsection 40(1).

             (7)  In this section:

local news program means:

                     (a)  a program that consists solely of local news and/or local weather information; or

                     (b)  a program:

                              (i)  that consists primarily of local news and/or local weather information; and

                             (ii)  the remainder of which consists of other news and/or other weather information;

but does not include:

                     (c)  a short segment, or a headline update, that is broadcast for the sole or primary purpose of promoting another program; or

                     (d)  a short segment, or a headline update, that repeats news content that has previously been broadcast by the licensee concerned.

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.

regional licence area means a licence area that is not a metropolitan licence area, but does not include:

                     (a)  the licence area of a commercial television broadcasting licence allocated under section 38C; or

                     (b)  a licence area specified in column 3 of the table in subsection 38C(1).

start date, in relation to the licence area of a section 38C licence, has the same meaning as in Division 2 of Part 3 of Schedule 2.

43AB  Commercial television programs to be provided to section 38C licensees by metropolitan commercial television broadcasting licensees

Programs to be provided by metropolitan licensees

             (1)  A commercial television broadcasting licence for a metropolitan licence area is subject to the condition that, if:

                     (a)  the licensee (the metropolitan licensee) broadcasts a program in a metropolitan licence area on either of the following services (a metropolitan service):

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

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

                     (b)  before the program is broadcast, a section 38C licensee requests the metropolitan licensee to provide the section 38C licensee with the programs broadcast on the metropolitan service;

the metropolitan licensee must:

                     (c)  provide the program to the section 38C licensee for broadcast by the section 38C licensee; and

                     (d)  do so:

                              (i)  simultaneously with the broadcast of that program on the metropolitan service; or

                             (ii)  as soon as practicable after the broadcast of that program on the metropolitan service.

HDTV digital mode or SDTV digital mode

             (2)  A program must be provided under subsection (1) by transmitting it:

                     (a)  if subparagraph (1)(a)(i) applies—in HDTV digital mode (within the meaning of Schedule 4); or

                     (b)  if subparagraph (1)(a)(ii) applies—in SDTV digital mode (within the meaning of Schedule 4).

SDTV multi‑channelled commercial television broadcasting service

             (3)  For the purposes of subsection (1), assume that paragraph 5A(1)(d) of Schedule 4 had not been enacted.

Definitions

             (4)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

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.

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

section 38C licensee means the licensee of a commercial television broadcasting licence allocated under section 38C.

43AC  Commercial television programs to be provided to section 38C licensees by remote terrestrial licensees

Scope

             (1)  This section applies if the licence area of a commercial television broadcasting licence (the remote terrestrial licence) is a related terrestrial licence area of a licence allocated under section 38C.

Programs to be provided by remote terrestrial licensees

             (2)  The remote terrestrial licence is subject to the condition that, if the licensee broadcasts a program in the related terrestrial licence area on either of the following services (a remote terrestrial service):

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

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

the licensee of the remote terrestrial licence must:

                     (c)  provide the program to the section 38C licensee for broadcast by the section 38C licensee; and

                     (d)  do so:

                              (i)  simultaneously with the broadcast of that program on the remote terrestrial service; or

                             (ii)  as soon as practicable after the broadcast of that program on the remote terrestrial service.

HDTV digital mode or SDTV digital mode

             (3)  A program must be provided under subsection (2) by transmitting it:

                     (a)  if paragraph (2)(a) applies—in HDTV digital mode (within the meaning of Schedule 4); or

                     (b)  if paragraph (2)(b) applies—in SDTV digital mode (within the meaning of Schedule 4).

Start date

          (3A)  Subsection (2) does not require a licensee to provide a program to the licensee of a section 38C licence before the start date for the licence area of the section 38C licence.

SDTV multi‑channelled commercial television broadcasting service

             (4)  For the purposes of subsection (2), assume that paragraph 5A(1)(d) of Schedule 4 had not been enacted.

Definitions

             (5)  In this section:

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

related terrestrial licence area:

                     (a)  in relation to a licence allocated under section 38C for the South Eastern Australia TV3 licence area—means a licence area mentioned in column 3 of item 1 of the table in subsection 38C(1); or

                     (b)  in relation to a licence allocated under section 38C for the Northern Australia TV3 licence area—means a licence area mentioned in column 3 of item 2 of the table in subsection 38C(1); or

                     (c)  in relation to a licence allocated under section 38C for the Western Australia TV3 licence area—means a licence area mentioned in column 3 of item 3 of the table in subsection 38C(1).

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.

section 38C licensee means the licensee of a commercial television broadcasting licence allocated under section 38C.

start date, in relation to the licence area of a section 38C licence, has the same meaning as in Division 2 of Part 3 of Schedule 2.

43AD  Compensation for acquisition of property

             (1)  If the operation of:

                     (b)  section 43AA; or

                     (c)  section 43AB; or

                     (d)  section 43AC;

in relation to the provision of a program to the licensee of a commercial television broadcasting licence would result in an acquisition of property from a person otherwise than on just terms, the licensee is liable to pay a reasonable amount of compensation to the person.

             (2)  If the licensee and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the licensee of such reasonable amount of compensation as the court determines.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

43B  Local presence—regional commercial radio broadcasting licences

          (1A)  The ACMA must ensure that, at all times after the commencement of Schedule 2 to the Broadcasting Services Amendment (Regional Commercial Radio) Act 2012, there is in force under section 43 a condition that has the effect of requiring that, if a trigger event for a regional commercial radio broadcasting licence occurs after the commencement of that Schedule, then, throughout the 24‑month period beginning when the trigger event occurs, the licensee must maintain at least the existing level of local presence.

Note:          A trigger event cannot occur in relation to a regional commercial radio broadcasting licence that was allocated under subsection 40(1): see section 50A.

             (2)  The condition must define existing level of local presence for the purposes of the condition.

             (3)  The definition must deal with:

                     (a)  staffing levels; and

                     (b)  studios and other production facilities.

             (4)  Subsection (3) does not limit subsection (2).

          (4A)  The condition does not apply to a regional commercial radio broadcasting licence that is:

                     (a)  a remote area service radio licence; or

                     (b)  a regional racing service radio licence.

             (5)  To avoid doubt, this section does not create any obligations under subsection 43(2) that would not exist apart from this section.

             (6)  Subsection 43(5) does not apply to the condition.

             (7)  This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.

             (8)  The Minister may give the ACMA a written direction about the fulfilment of the obligation imposed on the ACMA by this section.

             (9)  The ACMA must comply with a direction under subsection (8).

           (10)  In this section:

regional commercial radio broadcasting licence has the same meaning as in Division 5C of Part 5.

staff includes individuals engaged as independent contractors.

trigger event has the same meaning as in Division 5C of Part 5.

43C  Local content—regional commercial radio broadcasting licences

             (1)  The ACMA must ensure that, at all times on and after 1 January 2008, there is in force under section 43 a condition that has the effect of requiring the licensee of a regional commercial radio broadcasting licence to broadcast, during daytime hours each business day, at least the applicable number of hours of material of local significance.

          (1A)  A licence condition imposed as a result of subsection (1) does not require a licensee (the relevant licensee) to broadcast material:

                     (a)  if:

                              (i)  the ACMA, by legislative instrument, specifies a period, in relation to one or more specified regional commercial radio broadcasting licensees; and

                             (ii)  the period does not exceed 5 weeks; and

                            (iii)  the licensees specified in the instrument consist of or include the relevant licensee;

                            on a business day during that period; or

                     (b)  if the ACMA, by legislative instrument, specifies a period that does not exceed 5 weeks—on a business day during that period; or

                     (c)  if neither paragraph (a) nor (b) applies—on a business day during the 5‑week period beginning on the second Monday in December each year.

A period specified under paragraph (a) or (b) may be a recurring period.

Material of local significance

             (2)  The condition must define material of local significance for the purposes of the condition. If a regional commercial radio broadcasting licensee is required to comply with section 61CD, the definition of material of local significance must be broad enough to cover material that the licensee must broadcast in order to comply with that section.

Exclusion of certain licences

          (2A)  The condition does not apply to a regional commercial radio broadcasting licence that is:

                     (a)  a remote area service radio licence; or

                     (b)  a regional racing service radio licence; or

                     (c)  allocated under subsection 40(1).

Applicable number

             (3)  For the purposes of the application of subsection (1) to a regional commercial radio broadcasting licence, the applicable number is:

                     (a)  4.5; or

                     (b)  if the Minister, by legislative instrument, declares that another number is the applicable number for regional commercial radio broadcasting licences generally—the other number; or

                     (c)  if:

                              (i)  the Minister, by legislative instrument, declares that another number is the applicable number for a specified class of regional commercial radio broadcasting licences; and

                             (ii)  the regional commercial radio broadcasting licence is included in that class;

                            the other number.

             (4)  Before 30 June 2007, the Minister must cause to be conducted a review of:

                     (a)  whether:

                              (i)  a declaration should be made under paragraph (3)(b); or

                             (ii)  one or more declarations should be made under subparagraph (3)(c)(i); and

                     (b)  the number or numbers that should be specified in the declaration or declarations concerned; and

                     (c)  in the case of a declaration or declarations under subparagraph (3)(c)(i)—the class or classes that should be specified in the declaration or declarations concerned.

          (4A)  The Minister must cause to be prepared a report of a review under subsection (4).

          (4B)  The Minister must cause copies of a report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the report.

          (4C)  Before the end of whichever of the following periods ends first:

                     (a)  the period of 15 sitting days of the House of Representatives after the completion of the report;

                     (b)  the period of 15 sitting days of the Senate after the completion of the report;

the Minister must:

                     (c)  either:

                              (i)  make a declaration under paragraph (3)(b); or

                             (ii)  make one or more declarations under subparagraph (3)(c)(i); and

                     (d)  cause a copy of each such declaration to be laid before each House of the Parliament in accordance with section 38 of the Legislative Instruments Act 2003.

Section 43 powers etc.

             (5)  To avoid doubt, this section does not create any obligations under subsection 43(2) that would not exist apart from this section.

             (6)  Subsection 43(5) does not apply to the condition.

             (7)  This section does not limit the powers conferred on the ACMA by section 43 to impose, vary or revoke other conditions.

Definitions

             (8)  In this section:

daytime hours means the hours:

                     (a)  beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and

                     (b)  ending at 6 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

metropolitan licence area means:

                     (a)  a licence area in which is situated the General Post Office of the capital city of:

                              (i)  New South Wales; or

                             (ii)  Victoria; or

                            (iii)  Queensland; or

                            (iv)  Western Australia; or

                             (v)  South Australia; or

                     (b)  the licence area known as Western Suburbs Sydney RA1.

regional commercial radio broadcasting licence means a commercial radio broadcasting licence that has a regional licence area.

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

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

Scope

             (1)  This section applies to a commercial radio broadcasting licence (the first licence) if:

                     (a)  the first licence authorises the licensee to provide one or more digital commercial radio broadcasting services; and

                     (b)  the first licence was not allocated under subsection 40(1).

Transmission by multiplex transmitter

             (2)  The first licence is subject to the condition that the licensee must not provide a digital commercial radio broadcasting service under the first licence unless:

                     (a)  the service is transmitted using a multiplex transmitter; and

                     (b)  the operation of the multiplex transmitter is authorised by a digital radio multiplex transmitter licence.

Use of more than one‑ninth of multiplex capacity

             (3)  If there is only one digital radio multiplex transmitter licence for the licence area of the first licence, the first licence is subject to the condition that the licensee of the first licence must not use more than one‑ninth of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing, under the first licence, a digital commercial radio broadcasting service that passes the shared content test in relation to an analog commercial radio broadcasting service provided under:

                     (a)  the first licence; or

                     (b)  another commercial radio broadcasting licence that has the same licence area as the first licence.

             (4)  If there are 2 or more digital radio multiplex transmitter licences for the licence area of the first licence, the first licence is subject to the condition that the licensee of the first licence must not use more than the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences for the purpose of providing, under the first licence, a digital commercial radio broadcasting service that passes the shared content test in relation to an analog commercial radio broadcasting service provided under:

                     (a)  the first licence; or

                     (b)  another commercial radio broadcasting licence that has the same licence area as the first licence.

             (5)  For the purposes of subsection (4), the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences is as follows:

Shared content test

             (6)  For the purposes of subsections (3) and (4), a digital commercial radio broadcasting service passes the shared content test at a particular time in relation to an analog commercial radio broadcasting service if:

                     (a)  the program content of at least 50% of the total number of hours of programs broadcast by the first‑mentioned service during daytime/evening hours during the 6‑month period ending at that time;

were the same as:

                     (b)  the program content of at least 50% of the total number of hours of programs broadcast by the other service during daytime/evening hours during the 6‑month period ending at that time.

             (7)  For the purposes of subsection (6), ignore the following:

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

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

                     (c)  any digital program enhancement content in relation to a radio program;

                     (d)  community information material or community promotional material;

                     (e)  a news break or weather bulletin;

                      (f)  any other similar material.

Definitions

             (8)  In this section:

category 1 digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.

category 2 digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.

daytime/evening hours means the hours:

                     (a)  beginning at 6 am each day; and

                     (b)  ending at midnight on the same day.

digital radio multiplex transmitter licence means:

                     (a)  a category 1 digital radio multiplex transmitter licence; or

                     (b)  a category 2 digital radio multiplex transmitter licence.

44  Matters to which conditions may relate

             (1)  Conditions of commercial television broadcasting licences and commercial radio broadcasting licences must be relevant to the broadcasting services to which those licences relate.

             (2)  Without limiting the range of conditions that may be imposed, the ACMA may impose a condition on a commercial television broadcasting licensee or a commercial radio broadcasting licensee:

                     (a)  requiring the licensee to comply with a code of practice that is applicable to the licensee; or

                     (b)  designed to ensure that a breach of a condition by the licensee does not recur.


 

Division 4General provisions

45  Duration of licences

             (1)  Subject to Part 10, commercial television broadcasting licences (other than commercial television broadcasting licences allocated under section 38C) and commercial radio broadcasting licences remain in force for 5 years.

             (2)  A commercial television broadcasting licence allocated under section 38C remains in force for 10 years.

             (3)  Subsection (2) has effect subject to:

                     (a)  subsection 38C(15); and

                     (b)  Part 10.

46  Applications for renewal

             (1)  The ACMA may renew a commercial television broadcasting licence or a commercial radio broadcasting licence if:

                     (a)  the licensee makes an application for renewal of the licence, in accordance with a form approved in writing by the ACMA, at least 20 weeks but not more than one year before the licence is due to expire; and

                     (b)  the application is accompanied by the renewal fee determined in writing by the ACMA.

             (2)  If the ACMA receives an application for renewal, the ACMA must notify in the Gazette the fact that the application has been made.

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

             (1)  Subject to subsection (2), if the ACMA receives an application under section 46, the ACMA must, by notice in writing given to the licensee, renew the licence for a period of 5 years.

             (2)  The ACMA must refuse to renew a licence if the ACMA decides that subsection 41(2) applies to the licensee.

             (3)  The ACMA is not required to conduct an investigation or a hearing into whether a licence should be renewed.

48  Transfer of commercial broadcasting licences

                   A commercial television broadcasting licensee or a commercial radio broadcasting licensee may transfer the licence to another person.

49  Surrender of commercial broadcasting licences

                   A commercial television broadcasting licensee or a commercial radio broadcasting licensee may, by notice in writing given to the ACMA, surrender the licence.


 

Part 5Control of commercial broadcasting licences and datacasting transmitter licences

Division 1Preliminary

50A  This Part does not apply in relation to licences allocated under section 38C or subsection 40(1)

                   This Part does not apply in relation to:

                     (a)  a commercial television broadcasting licence; or

                     (b)  a commercial radio broadcasting licence;

if the licence was allocated under section 38C or subsection 40(1).

50  Interpretation—knowledge of company

             (1)  For the purposes of this Part, if a director, the chief executive or a secretary of a company has knowledge of a matter, the company is taken to have knowledge of the matter.

             (2)  Subsection (1) does not limit the ways in which knowledge of a company can be established.

51  Means of dealing with overlapping licence areas

                   If:

                     (a)  more than 30% of the licence area population of a licence area is attributable to an overlap area; or

                     (b)  a licence area is entirely within another licence area;

the rules in this Part apply to the 2 licence areas, but not between those licence areas and other licence areas, as if the 2 licence areas were one.

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

                   This Part does not apply to a channel B datacasting transmitter licence unless the relevant transmitter, or any of the relevant transmitters, is operated for transmitting a datacasting service that is capable of being received by a domestic digital television receiver.

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

                   If:

                     (a)  the ACMA makes a new determination of the licence area population of a licence area or of the population of Australia; and

                     (b)  as a result of the determination, a person would be in breach of subsection 53(1) or 55(1) or (2);

those subsections continue to apply to the person as if the previous determination remained in force.

52A  Newspapers—additional constitutional basis

             (1)  Without limiting its effect apart from this section, this Act also has effect as provided by this section.

             (2)  This Act also has the effect it would have if each reference in this Part to a newspaper were, by express provision, confined to a newspaper where:

                     (a)  the publisher of the newspaper is a constitutional corporation; or

                     (b)  at least part of the circulation of the newspaper is:

                              (i)  in 2 or more States; or

                             (ii)  in a Territory; or

                            (iii)  in a foreign country.


 

Division 2Limitation on control

Subdivision ACommercial broadcasting licences

53  Limitation on control of commercial television broadcasting licences

             (1)  A person must not be in a position to exercise control of commercial television broadcasting licences whose combined licence area populations exceed 75% of the population of Australia.

             (2)  A person must not be in a position to exercise control of more than one commercial television broadcasting licence in the same licence area.

54  Limitation on control of commercial radio broadcasting licences

                   A person must not be in a position to exercise control of more than 2 commercial radio broadcasting licences in the same licence area.

Subdivision BCommercial television broadcasting licences and datacasting transmitter licences

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

                   A person must not be in a position to exercise control of:

                     (a)  a commercial television broadcasting licence; and

                     (b)  a datacasting transmitter licence.

Subdivision CCommercial radio broadcasting licences and restricted datacasting licences

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

             (1)  This section applies in relation to a commercial radio broadcasting licence if the licence was in force immediately before the digital radio start‑up day for the licence area.

             (2)  During the digital radio moratorium period for the licence area, a person must not be in a position to exercise control of:

                     (a)  the commercial radio broadcasting licence; and

                     (b)  a restricted datacasting licence.


 

Division 3Limitation on directorships

Subdivision ATelevision and radio

55  Limitation on numbers of directorships—television

             (1)  A person must not be a director of a company that is, or of 2 or more companies that are, between them, in a position to exercise control of commercial television broadcasting licences whose combined licence area populations exceed 75% of the population of Australia.

             (2)  A person must not be:

                     (a)  in a position to exercise control of a commercial television broadcasting licence; and

                     (b)  a director of a company that is in a position to exercise control of another commercial television broadcasting licence;

whose combined licence area populations exceed 75% of the population of Australia.

             (3)  A person must not be:

                     (a)  a director of a company that is in a position to exercise control of a commercial television broadcasting licence; and

                     (b)  a director of a company that is in a position to exercise control of another commercial television broadcasting licence;

if each of those licences have the same licence area.

             (4)  A person must not be:

                     (a)  a director of a company that is in a position to exercise control of a commercial television broadcasting licence; and

                     (b)  in a position to exercise control of another commercial television broadcasting licence;

if each of those licences have the same licence area.

56  Limitation on numbers of directorships—radio

                   A person must not be:

                     (a)  a director of a company that is, or of 2 or more companies that are, between them, in a position to exercise control of more than 2 commercial radio broadcasting licences in the same licence area; or

                     (b)  a director of a company that is, or of 2 or more companies that are, between them, in a position to exercise control of 2 commercial radio broadcasting licences in a licence area and in a position to exercise control of another commercial radio broadcasting licence in the same licence area; or

                     (c)  in a position to exercise control of 2 commercial radio broadcasting licences in a licence area and a director of a company that is in a position to exercise control of another commercial radio broadcasting licence in the same licence area.

Subdivision BTelevision and datacasting

56A  Limitation on directorships—television and datacasting

             (1)  A person must not be a director of:

                     (a)  a company that is in a position to exercise control of a commercial television broadcasting licence; and

                     (b)  a company that is in a position to exercise control of a datacasting transmitter licence.

             (2)  A person must not:

                     (a)  be in a position to exercise control of a commercial television broadcasting licence; and

                     (b)  be a director of a company that is in a position to exercise control of a datacasting transmitter licence.

             (3)  A person must not:

                     (a)  be a director of a company that is in a position to exercise control of a commercial television broadcasting licence; and

                     (b)  be in a position to exercise control of a datacasting transmitter licence.


 

Division 5Newspapers associated with licence areas

59  Newspapers associated with commercial television or radio broadcasting licence areas

             (1)  The ACMA is to maintain an Associated Newspaper Register.

             (2)  For the purposes of this Part, a newspaper is associated with the licence area of a licence if the name of the newspaper is entered in the Register as being associated with the licence area of the licence.

             (3)  If the ACMA is satisfied that at least 50% of the circulation of a newspaper is within the licence area of a commercial television broadcasting licence, the ACMA is to enter the name of the newspaper in the Register in relation to that licence area.

             (4)  If the ACMA is satisfied that less than 50% of the circulation of a newspaper that is entered in the Register in relation to a commercial television broadcasting licence is within the licence area of that licence, the ACMA is to remove the name of the newspaper from the Register in relation to that licence area.

          (4A)  If the ACMA is satisfied that:

                     (a)  at least 50% of the circulation of a newspaper is within the licence area of a commercial radio broadcasting licence; and

                     (b)  the circulation of the newspaper within that licence area is at least 2% of the licence area population;

the ACMA must enter the name of the newspaper in the Register in relation to the licence area.

          (4B)  If the ACMA is satisfied that:

                     (a)  less than 50% of the circulation of a newspaper that is entered in the Register in relation to a commercial radio broadcasting licence is within the licence area of that licence; or

                     (b)  the circulation of the newspaper within that licence area is less than 2% of the licence area population;

the ACMA must remove the name of the newspaper from the Register in relation to the licence area.

          (4C)  Despite subsections (3) and (4A), if the ACMA is satisfied that:

                     (a)  a person (either alone or together with one or more other persons) has entered into, begun to carry out or carried out a scheme to publish a newspaper; and

                     (b)  the person did so for the sole or dominant purpose of ensuring that the number of points in the licence area of a commercial radio broadcasting licence would be increased or maintained;

the ACMA may refuse to enter the name of the newspaper in the Register.

          (4D)  If:

                     (a)  a newspaper is entered in the Register; and

                     (b)  the ACMA is satisfied that:

                              (i)  a person (either alone or together with one or more other persons) entered into, began to carry out or carried out a scheme to publish the newspaper; and

                             (ii)  the person did so for the sole or dominant purpose of ensuring that the number of points in the licence area of a commercial radio broadcasting licence would be increased or maintained;

the ACMA may remove the name of the newspaper from the Register.

             (5)  The Register may be maintained by electronic means.

             (6)  The Register is to be made available for inspection on the internet.

             (7)  The ACMA may supply copies of or extracts from the Register certified by a member, and a copy or extract so certified is admissible in evidence in all courts and proceedings without further proof or production of the original.

             (8)  In this section:

points has the same meaning as in Division 5A.

scheme has the same meaning as in Division 5A.


 

Division 5AMedia diversity

Subdivision AIntroduction

61AA  Definitions

                   In this Division:

commencement day means the day on which Schedule 2 to the Broadcasting Services Amendment (Media Ownership) Act 2006 commences.

controller of a media group means a person who is in a position to exercise control of each media operation in the media group.

daytime/evening hours means the hours:

                     (a)  beginning at 6 am each day; and

                     (b)  ending at midnight on the same day.

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

interest in a share means a legal or equitable interest in the share.

media group means a group of 2 or more media operations.

media operation means:

                     (a)  a commercial television broadcasting licence; or

                     (b)  a commercial radio broadcasting licence; or

                     (c)  a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence.

metropolitan licence area means:

                     (a)  a licence area in which is situated the General Post Office of the capital city of:

                              (i)  New South Wales; or

                             (ii)  Victoria; or

                            (iii)  Queensland; or

                            (iv)  Western Australia; or

                             (v)  South Australia; or

                     (b)  the licence area known as Western Suburbs Sydney RA1.

name of a commercial television broadcasting licence or a commercial radio broadcasting licence means the service licence number of the licence.

points, in relation to the licence area of a commercial radio broadcasting licence, has the meaning given by section 61AC.

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

Register means the Register of Controlled Media Groups maintained under section 61AU.

registered controller of a registered media group means a person whose name is entered in the Register as a controller of the media group.

registered media group means a media group that is entered in the Register.

registrable media group, in relation to the licence area of a commercial radio broadcasting licence, means a media group covered by item 1 of the table in subsection 61AC(1) in its application to that licence area. For this purpose, disregard subsection 61AC(2).

scheme means:

                     (a)  any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; and

                     (b)  any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.

shared content test has the meaning given by section 61AE.

statutory control rules has the meaning given by section 61AD.

unacceptable 3‑way control situation has the meaning given by section 61AEA.

unacceptable media diversity situation has the meaning given by section 61AB.

61AB  Unacceptable media diversity situation

Metropolitan licence area

             (1)  For the purposes of this Division, an unacceptable media diversity situation exists in relation to a metropolitan licence area of a commercial radio broadcasting licence if the number of points in the licence area is less than 5.

Regional licence area

             (2)  For the purposes of this Division, an unacceptable media diversity situation exists in relation to a regional licence area of a commercial radio broadcasting licence if the number of points in the licence area is less than 4.

61AC  Points

             (1)  Use the table to work out the number of points in the licence area of a commercial radio broadcasting licence (the first radio licence area):

 

Points

Item

This ...

is worth ...

1

a group of 2 or more media operations, where:

(a) a person is in a position to exercise control of each of those media operations; and

(b) each of those media operations complies with the statutory control rules; and

(c) if a commercial television broadcasting licence is in the group—more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and

(d) if a commercial radio broadcasting licence is in the group—the licence area of the commercial radio broadcasting licence is, or is the same as, the first radio licence area; and

(e) if a newspaper is in the group—the newspaper is associated with the first radio licence area

1 point.

2

a commercial radio broadcasting licence, where:

(a) the licence complies with the statutory control rules; and

(b) the licence area of the licence is, or is the same as, the first radio licence area; and

(c) item 1 does not apply to the licence

1 point.

3

a newspaper, where:

(a) the newspaper complies with the statutory control rules; and

(b) the newspaper is associated with the first radio licence area; and

(c) item 1 does not apply to the newspaper

1 point.

4

a group of 2 or more commercial television broadcasting licences, where:

(a) each of those licences complies with the statutory control rules; and

(b) more than 50% of the licence area population of the first radio licence area is attributable to the licence area of each of those commercial television broadcasting licences; and

(c) the core/primary commercial television broadcasting services to which those commercial television broadcasting licences relate pass the shared content test in relation to each other; and

(d) item 1 does not apply to any of those commercial television broadcasting licences

1 point.

5

a commercial television broadcasting licence, where:

(a) the licence complies with the statutory control rules; and

(b) more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and

(c) none of the commercial television broadcasting services provided under the licence passes the shared content test in relation to any of the commercial television broadcasting services provided under another commercial television broadcasting licence, where more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the other commercial television broadcasting licence; and

(d) item 1 does not apply to the first‑mentioned licence

1 point.

 

             (2)  If, apart from this subsection, all the media operations in a group of media operations mentioned in an item of the table are also in one or more other groups mentioned in an item of the table, then, for the purposes of subsection (1), ignore the existence of:

                     (a)  if one of the groups has the highest number of media operations—the remaining group or groups; or

                     (b)  if 2 or more of the groups have an equal highest number of media operations:

                              (i)  all but one of the groups that have an equal highest number of media operations; and

                             (ii)  the remaining group or groups; or

                     (c)  if the groups have an equal number of media operations—all but one of those groups.

61AD  Statutory control rules

                   For the purposes of this Division, a media operation complies with the statutory control rules if, and only if:

                     (a)  no person is in breach of a prohibition in Division 2 or 3 that relates directly or indirectly to the media operation; or

                     (b)  a person is in breach of a prohibition in Division 2 or 3 that relates directly or indirectly to the media operation, but the ACMA has approved the breach under section 67.

Note:          Section 67 is about approval of temporary breaches.

61AE  Shared content test

             (1)  For the purposes of this Division, a commercial television broadcasting service passes the shared content test at a particular time in relation to another commercial television broadcasting service if:

                     (a)  the program content of at least 50% of the total number of hours of programs broadcast by the first‑mentioned service during daytime/evening hours during the 6‑month period ending at that time;

were the same as:

                     (b)  the program content of at least 50% of the total number of hours of programs broadcast by the other service during daytime/evening hours during the 6‑month period ending at that time.

             (2)  For the purposes of subsection (1), ignore the following:

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

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

                     (c)  community information material or community promotional material;

                     (d)  a news break or weather bulletin;

                     (e)  any other similar material.

             (3)  For the purposes of subsection (1), ignore any material covered by paragraph 6(8)(b), (c) or (d) of Schedule 4.

61AEA  Unacceptable 3‑way control situation

                   For the purposes of this Division, an unacceptable 3‑way control situation exists in relation to the licence area of a commercial radio broadcasting licence (the first radio licence area) if a person is in a position to exercise control of:

                     (a)  a commercial television broadcasting licence, where more than 50% of the licence area population of the first radio licence area is attributable to the licence area of the commercial television broadcasting licence; and

                     (b)  a commercial radio broadcasting licence, where the licence area of the commercial radio broadcasting licence is, or is the same as, the first radio licence area; and

                     (c)  a newspaper that is associated with the first radio licence area.

61AF  Overlapping licence areas

                   Section 51 does not apply to this Division.

 Note:         Section 51 is about overlapping licence areas.

Subdivision BProhibition of transactions that result in an unacceptable media diversity situation coming into existence etc.

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

                   A person commits an offence if:

                     (a)  one or more transactions take place on or after the commencement day; and

                     (b)  the transactions have the result that:

                              (i)  an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or

                             (ii)  if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and

                     (c)  the person was:

                              (i)  a party to the transactions; or

                             (ii)  in a position to prevent the transactions taking place; and

                     (d)  the ACMA has not approved the transactions under section 61AJ.

Penalty:  20,000 penalty units.

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

             (1)  This section applies if:

                     (a)  one or more transactions take place on or after the commencement day; and

                     (b)  the transactions have the result that:

                              (i)  an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or

                             (ii)  if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and

                     (c)  the ACMA has not approved the transactions under section 61AJ.

             (2)  A person must not be:

                     (a)  a party to the transactions; or

                     (b)  in a position to prevent the transactions taking place.

             (3)  Subsection (2) is a civil penalty provision.

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

             (1)  A person may, before a transaction takes place that would place a person in breach of section 61AG or 61AH, make an application to the ACMA for an approval of the transaction.

             (2)  An application is to be made in accordance with a form approved in writing by the ACMA.

             (3)  If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  If, after receiving an application, the ACMA is satisfied that:

                     (a)  if the transaction took place, it would place a person in breach of section 61AG or 61AH; and

                     (b)  either:

                              (i)  the applicant; or

                             (ii)  another person;

                            will take action, within a period of not longer than 2 years, to ensure that:

                            (iii)  an unacceptable media diversity situation does not exist in relation to the licence area concerned; or

                            (iv)  if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned;

the ACMA may, by written notice given to the applicant:

                     (c)  approve the transaction; and

                     (d)  if subparagraph (b)(i) applies—specify a period within which action must be taken by the applicant to ensure that:

                              (i)  an unacceptable media diversity situation does not exist in relation to the licence area concerned; or

                             (ii)  if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned; and

                     (e)  if subparagraph (b)(ii) applies—inform the applicant accordingly.

             (5)  The period specified in the notice must be at least one month, but not longer than 2 years.

             (6)  The ACMA may specify in a notice given to an applicant the action that the ACMA considers the applicant must take to ensure that:

                     (a)  an unacceptable media diversity situation does not exist in relation to the licence area concerned; or

                     (b)  if an unacceptable media diversity situation already exists in relation to the licence area concerned—there is not a reduction in the number of points in the licence area concerned.

             (7)  In deciding whether to approve a transaction, the ACMA may have regard to:

                     (a)  any relevant undertakings that:

                              (i)  have been accepted by the ACMA under section 61AS; and

                             (ii)  have not been withdrawn or cancelled; and

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

             (8)  If the ACMA refuses to approve a transaction, the ACMA must give written notice of the refusal to the applicant.

             (9)  The ACMA must deal with applications under subsection (1) in order of receipt.

           (10)  If the ACMA receives an application under subsection (1), the ACMA must use its best endeavours to make a decision on the application within 45 days after receipt of the application.

61AK  Extension of time for compliance with prior approval notice

             (1)  A person who has been given a notice under section 61AJ may, within 3 months before the end of the period specified in the notice but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.

             (2)  The ACMA may grant an extension if it is of the opinion that an extension is appropriate in all the circumstances.

             (3)  If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  The ACMA must not grant more than one extension, and the period of any extension must not exceed:

                     (a)  the period originally specified in the notice; or

                     (b)  one year;

whichever is the lesser period.

             (5)  In deciding whether to grant an extension to an applicant, the ACMA is to have regard to:

                     (a)  the endeavours that the applicant made in attempting to comply with the notice; and

                     (b)  the difficulties that the applicant experienced in attempting to comply with the notice;

but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.

             (6)  If the ACMA does not, within 45 days after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:

                     (c)  the period originally specified in the notice; or

                     (d)  one year;

whichever is the lesser period.

             (7)  If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.

61AL  Breach of prior approval notice—offence

             (1)  A person commits an offence if:

                     (a)  the person has been given a notice under section 61AJ; and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes a requirement in the notice.

Penalty:  20,000 penalty units.

             (2)  A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

61AM  Breach of prior approval notice—civil penalty

             (1)  A person must comply with a notice under section 61AJ.

             (2)  Subsection (1) is a civil penalty provision.

             (3)  A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.

Subdivision BAProhibition of transactions that result in an unacceptable 3‑way control situation coming into existence etc.

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

                   A person commits an offence if:

                     (a)  one or more transactions take place on or after the commencement day; and

                     (b)  the transactions have the result that an unacceptable 3‑way control situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; and

                     (c)  the person was:

                              (i)  a party to the transactions; or

                             (ii)  in a position to prevent the transactions taking place; and

                     (d)  the ACMA has not approved the transactions under section 61AMC.

Penalty:  20,000 penalty units.

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

             (1)  This section applies if:

                     (a)  one or more transactions take place on or after the commencement day; and

                     (b)  the transactions have the result that an unacceptable 3‑way control situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; and

                     (c)  the ACMA has not approved the transactions under section 61AMC.

             (2)  A person must not be:

                     (a)  a party to the transactions; or

                     (b)  in a position to prevent the transactions taking place.

             (3)  Subsection (2) is a civil penalty provision.

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

             (1)  A person may, before a transaction takes place that would place a person in breach of section 61AMA or 61AMB, make an application to the ACMA for an approval of the transaction.

             (2)  An application is to be made in accordance with a form approved in writing by the ACMA.

             (3)  If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  If, after receiving an application, the ACMA is satisfied that:

                     (a)  if the transaction took place, it would place a person in breach of section 61AMA or 61AMB; and

                     (b)  either:

                              (i)  the applicant; or

                             (ii)  another person;

                            will take action, within a period of not longer than 12 months, to ensure that an unacceptable 3‑way control situation does not exist in relation to the licence area concerned;

the ACMA may, by written notice given to the applicant:

                     (c)  approve the transaction; and

                     (d)  if subparagraph (b)(i) applies—specify a period within which action must be taken by the applicant to ensure that an unacceptable 3‑way control situation does not exist in relation to the licence area concerned; and

                     (e)  if subparagraph (b)(ii) applies—inform the applicant accordingly.

             (5)  The period specified in the notice must be at least one month, but not longer than 12 months.

             (6)  The ACMA may specify in a notice given to an applicant the action that the ACMA considers the applicant must take to ensure that an unacceptable 3‑way control situation does not exist in relation to the licence area concerned.

             (7)  In deciding whether to approve a transaction, the ACMA may have regard to:

                     (a)  any relevant undertakings that:

                              (i)  have been accepted by the ACMA under section 61AS; and

                             (ii)  have not been withdrawn or cancelled; and

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

             (8)  If the ACMA refuses to approve a transaction, the ACMA must give written notice of the refusal to the applicant.

             (9)  The ACMA must deal with applications under subsection (1) in order of receipt.

           (10)  If the ACMA receives an application under subsection (1), the ACMA must use its best endeavours to make a decision on the application within 45 days after receipt of the application.

61AMD  Extension of time for compliance with prior approval notice

             (1)  A person who has been given a notice under section 61AMC may, within 3 months before the end of the period specified in the notice but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.

             (2)  The ACMA may grant an extension if it is of the opinion that an extension is appropriate in all the circumstances.

             (3)  If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (4)  The ACMA must not grant more than one extension, and the period of any extension must not exceed:

                     (a)  the period originally specified in the notice; or

                     (b)  6 months;

whichever is the lesser period.

             (5)  In deciding whether to grant an extension to an applicant, the ACMA is to have regard to:

                     (a)  the endeavours that the applicant made in attempting to comply with the notice; and

                     (b)  the difficulties that the applicant experienced in attempting to comply with the notice;

but the ACMA must not have regard to any financial disadvantage that compliance with the notice may cause.

             (6)  If the ACMA does not, within 45 days after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

extend the period or refuse to extend the period originally specified in the notice, the ACMA is to be taken to have extended that period by:

                     (c)  the period originally specified in the notice; or

                     (d)  6 months;

whichever is the lesser period.

             (7)  If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.

61AME  Breach of prior approval notice—offence

             (1)  A person commits an offence if:

                     (a)  the person has been given a notice under section 61AMC; and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes a requirement in the notice.

Penalty:  20,000 penalty units.

             (2)  A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

61AMF  Breach of prior approval notice—civil penalty

             (1)  A person must comply with a notice under section 61AMC.

             (2)  Subsection (1) is a civil penalty provision.

             (3)  A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.

Subdivision CRemedial directions

61AN  Remedial directions—unacceptable media diversity situation

             (1)  If, on or after the commencement day, the ACMA is satisfied that an unacceptable media diversity situation exists in relation to the licence area of a commercial radio broadcasting licence, the ACMA may give a person such written directions as the ACMA considers appropriate for the purpose of ensuring that that situation ceases to exist.

             (2)  The ACMA’s directions may include:

                     (a)  a direction requiring the disposal of shares or interests in shares; or

                     (b)  a direction restraining the exercise of any rights attached to:

                              (i)  shares; or

                             (ii)  interests in shares; or

                     (c)  a direction prohibiting or deferring the payment of any sums due to a person in respect of shares, or interests in shares, held by the person; or

                     (d)  a direction that any exercise of rights attached to:

                              (i)  shares; or

                             (ii)  interests in shares;

                            be disregarded.

             (3)  Subsection (2) does not limit subsection (1).

             (4)  The ACMA must not give a direction under subsection (1) if the direction would have the effect of requiring a registered controller of a registered media group to cease to be in a position to exercise control of any of the media operations in the group.

          (4A)  Subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of a registered media group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of a media operation in the group if:

                     (a)  the registered controller failed to comply with a notice under section 61AJ; and

                     (b)  the notice related, to any extent, to the media operation.

          (4B)  Subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of a registered media group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of a media operation in the group if:

                     (a)  an approval under section 61AJ was given on the basis that the ACMA was satisfied that a person other than the registered controller would, within a particular period, take action that, to any extent, relates to the media operation; and

                     (b)  the person failed to take the action within that period.

          (4C)  If:

                     (a)  the ACMA made any of the following decisions (the original decision) in connection with a registrable media group in relation to the licence area of a commercial radio broadcasting licence:

                              (i)  a decision to enter the media group in the Register under subsection 61AY(1) or 61AZ(1);

                             (ii)  a decision under subsection 61AZE(1) confirming the entry of the media group in the Register;

                            (iii)  a decision under section 61AZF affirming a decision under subsection 61AZE(1) to confirm the entry of the media group in the Register;

                            (iv)  a decision under section 61AZF revoking a decision under subsection 61AZE(1) to cancel the entry of the media group in the Register; and

                     (b)  any of the following subparagraphs applies:

                              (i)  in the case of a decision under subsection 61AZE(1)—a person applied to the ACMA for a reconsideration of the original decision;

                             (ii)  in the case of a decision under section 61AZF—a person applied to the Administrative Appeals Tribunal for a review of the original decision;

                            (iii)  in any case—a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to the original decision; and

                     (c)  the original decision was set aside or revoked; and

                     (d)  after the original decision was set aside or revoked, the ACMA entered another registrable media group in relation to that licence area in the Register; and

                     (e)  after that other group was entered in the Register, the Administrative Appeals Tribunal or a court made a decision the effect of which was to restore or affirm the original decision;

subsection (4) does not prevent the ACMA from giving a direction under subsection (1) to a registered controller of that other group that would have the effect of requiring the registered controller to cease to be in a position to exercise control of any media operation in that other group.

             (5)  A direction under subsection (1) must specify a period within which the person must comply with the direction.

             (6)  The period must not be longer than 2 years.

          (6A)  If:

                     (a)  the ACMA gives a direction under subsection (1) in the circumstances referred to in subsection (4C); and

                     (b)  subsection (8) does not apply;

the period specified in the direction must be 2 years.

             (7)  If the ACMA is satisfied that the person:

                     (a)  acted in good faith; and

                     (b)  took reasonable precautions, and exercised due diligence, to avoid:

                              (i)  the unacceptable media diversity situation coming into existence; or

                             (ii)  if the unacceptable media diversity situation already existed—a reduction in the number of points in the licence area concerned;

the period specified in the direction must be 2 years.

             (8)  If the ACMA is satisfied that the person acted flagrantly in breach of section 61AG or 61AH, the period specified in the direction must be one month.

             (9)  The Parliament recognises that, if a period of one month is specified in a direction, the person to whom the direction is given or another person may be required to dispose of shares or interests in shares in a way, or otherwise make arrangements, that could cause the person a considerable financial disadvantage. Such a result is seen as necessary in order to discourage flagrant breaches of sections 61AG and 61AH.

61ANA  Remedial directions—unacceptable 3‑way control situation

             (1)  If, on or after the commencement day, the ACMA is satisfied that an unacceptable 3‑way control situation exists in relation to the licence area of a commercial radio broadcasting licence, the ACMA may give a person such written directions as the ACMA considers appropriate for the purpose of ensuring that that situation ceases to exist.

             (2)  The ACMA’s directions may include:

                     (a)  a direction requiring the disposal of shares or interests in shares; or

                     (b)  a direction restraining the exercise of any rights attached to:

                              (i)  shares; or

                             (ii)  interests in shares; or

                     (c)  a direction prohibiting or deferring the payment of any sums due to a person in respect of shares, or interests in shares, held by the person; or

                     (d)  a direction that any exercise of rights attached to:

                              (i)  shares; or

                             (ii)  interests in shares;

                            be disregarded.

             (3)  Subsection (2) does not limit subsection (1).

             (4)  A direction under subsection (1) must specify a period within which the person must comply with the direction.

             (5)  The period must not be longer than 12 months.

             (6)  If the ACMA is satisfied that the person:

                     (a)  acted in good faith; and

                     (b)  took reasonable precautions, and exercised due diligence, to avoid the unacceptable 3‑way control situation coming into existence;

the period specified in the direction must be 12 months.

             (7)  If the ACMA is satisfied that the person acted flagrantly in breach of section 61AMA or 61AMB, the period specified in the direction must be one month.

             (8)  The Parliament recognises that, if a period of one month is specified in a direction, the person to whom the direction is given or another person may be required to dispose of shares or interests in shares in a way, or otherwise make arrangements, that could cause the person a considerable financial disadvantage. Such a result is seen as necessary in order to discourage flagrant breaches of sections 61AMA and 61AMB.

61AP  Extension of time for compliance with remedial direction

             (1)  A person who has been given a direction under section 61AN or 61ANA may, within 3 months before the end of the period specified in the direction but not less than one month before the end of that period, apply in writing to the ACMA for an extension of that period.

             (2)  An application for an extension cannot be made if the period specified in the direction was one month.

             (3)  In the case of a direction under section 61AN, the ACMA may grant an extension if it is of the opinion that:

                     (a)  an unacceptable media diversity situation is likely to cease to exist in the licence area concerned within 3 months after the end of the period specified in the direction under section 61AN; and

                     (b)  the applicant acted in good faith; and

                     (c)  an extension is appropriate in all the circumstances.

          (3A)  In the case of a direction under section 61ANA, the ACMA may grant an extension if it is of the opinion that:

                     (a)  an unacceptable 3‑way control situation is likely to cease to exist in the licence area concerned within 3 months after the end of the period specified in the direction under section 61ANA; and

                     (b)  the applicant acted in good faith; and

                     (c)  an extension is appropriate in all the circumstances.

             (4)  If the ACMA considers that additional information is required before the ACMA can make a decision on an application, the ACMA may, by written notice given to the applicant within 30 days after receiving the application, request the applicant to provide that information.

             (5)  The ACMA must not grant more than one extension, and the period of any extension must not exceed 3 months.

             (6)  In deciding whether to grant an extension to a person, the ACMA is to have regard to:

                     (a)  the endeavours that the applicant made in attempting to comply with the direction; and

                     (b)  the difficulties experienced by the applicant in attempting to comply with the direction; and

                     (c)  the seriousness of the situation that led to the giving of the direction under section 61AN or 61ANA, as the case may be;

but the ACMA must not have regard to any financial disadvantage that compliance with the direction may cause.

             (7)  If the ACMA does not, within 45 days after:

                     (a)  receiving the application; or

                     (b)  if the ACMA has requested further information—receiving that further information;

extend the period or refuse to extend the period originally specified in the direction, the ACMA is to be taken to have extended that period by 3 months.

             (8)  If the ACMA refuses to approve an application made under subsection (1), the ACMA must give written notice of the refusal to the applicant.

61AQ  Breach of remedial direction—offence

             (1)  A person commits an offence if:

                     (a)  the person has been given a direction under section 61AN or 61ANA; and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes a requirement in the direction.

Penalty:  20,000 penalty units.

             (2)  A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

61AR  Breach of remedial direction—civil penalty

             (1)  A person must comply with a direction under section 61AN or 61ANA.

             (2)  Subsection (1) is a civil penalty provision.

             (3)  A person who contravenes subsection (1) commits a separate contravention of that subsection in respect of each day (including a day of the making of a relevant civil penalty order or any later day) during which the contravention continues.

Subdivision DEnforceable undertakings

61AS  Acceptance of undertakings

             (1)  The ACMA may accept any of the following undertakings:

                     (a)  a written undertaking given by a person that the person will take specified action to ensure that an unacceptable media diversity situation does not exist in relation to the licence area of a commercial radio broadcasting licence;

                     (b)  if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—a written undertaking given by a person that the person will take specified action to ensure that there is not a reduction in the number of points in the licence area;

                     (c)  a written undertaking given by a person that the person will take specified action to ensure that an unacceptable 3‑way control situation does not exist in relation to the licence area of a commercial radio broadcasting licence.

             (2)  The undertaking must be expressed to be an undertaking under this section.

             (3)  The person may withdraw or vary the undertaking at any time, but only with the consent of the ACMA.

             (4)  The ACMA may, by written notice given to the person, cancel the undertaking.

             (5)  The ACMA may publish the undertaking on its website.

61AT  Enforcement of undertakings

             (1)  If:

                     (a)  a person has given an undertaking under section 61AS; and

                     (b)  the undertaking has not been withdrawn or cancelled; and

                     (c)  the ACMA considers that the person has breached the undertaking;

the ACMA may apply to the Federal Court for an order under subsection (2).

             (2)  If the Federal Court is satisfied that the person has breached the undertaking, the court may make any or all of the following orders:

                     (a)  an order directing the person to comply with the undertaking;

                     (b)  an order directing the person to pay to the ACMA, on behalf of the Commonwealth, an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

                     (c)  any order that the court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

                     (d)  any other order that the court considers appropriate.

Subdivision ERegister of Controlled Media Groups

61AU  Register of Controlled Media Groups

             (1)  The ACMA is to maintain a register, to be known as the Register of Controlled Media Groups.

             (2)  The Register is to be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the internet.

             (4)  The Register is not a legislative instrument.

             (5)  The ACMA must begin to comply with subsection (1) as soon as practicable after the start of 1 February 2007.

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

             (1)  For the purposes of this Subdivision, the ACMA is to enter a media group in the Register by entering in the Register, under a heading for the group:

                     (a)  the names of the media operations in the group; and

                     (b)  the name of the controller, or the names of each of the controllers, of the media operations in the group.

             (2)  A media group is to be identified in the Register by a unique number assigned by the ACMA.

61AW  Explanatory notes may be included in the Register

             (1)  The ACMA may include explanatory notes in the Register.

             (2)  Explanatory notes do not form part of a media group’s entry in the Register.

61AX  Continuity of media group

             (1)  For the purposes of this Subdivision, a change in the controller, or any of the controllers, of a media group does not affect the continuity of the group.

             (2)  For the purposes of this Subdivision, a change in the composition of the media operations in a media group results in the group ceasing to exist.

             (3)  However, the rule in subsection (2) does not apply to a change in the composition of the media operations in a media group if:

                     (a)  one or more media operations cease to be in the group; and

                     (b)  at least 2 media operations remain in the group; and

                     (c)  there is no increase in the number of media operations that remain in the group.

61AY  Initial registration of media groups

             (1)  If the ACMA is satisfied that a particular media group was a registrable media group in relation to the licence area of a commercial radio broadcasting licence at the start of 1 February 2007, the ACMA must enter the group in the Register.

             (2)  For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

             (3)  If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant entry within 2 business days after receiving the notification or the last of the notifications.

             (4)  If the ACMA makes an entry under subsection (1), the ACMA is to include in the Register a note to the effect that the entry is unconfirmed.

             (5)  An entry under subsection (1) is taken to have been made at the start of 1 February 2007.

61AZ  Registration of newly‑formed media group

             (1)  If:

                     (a)  the ACMA is satisfied that:

                              (i)  a registrable media group has come into existence on or after 1 February 2007; and

                             (ii)  the media group is not already entered in the Register; and

                     (b)  the ACMA is satisfied that the coming into existence of the media group does not have the result that:

                              (i)  an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or

                             (ii)  if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and

                     (c)  the ACMA is satisfied that the coming into existence of the media group does not have the result that an unacceptable 3‑way control situation comes into existence in relation to the licence area of a commercial radio broadcasting licence;

the ACMA must enter the group in the Register.

             (2)  For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

             (3)  If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant entry within 2 business days after receiving the notification or the last of the notifications.

             (4)  If the ACMA makes an entry under subsection (1), the ACMA is to include in the Register a note to the effect that the entry is unconfirmed.

Register frozen while ACMA reconsideration is pending or AAT/court proceedings are pending

             (5)  If:

                     (a)  the ACMA makes a decision under this Subdivision in connection with a registrable media group in relation to the licence area of a commercial radio broadcasting licence; and

                     (b)  any of the following subparagraphs applies:

                              (i)  in the case of a decision under subsection 61AZE(1)—a person applies to the ACMA for a reconsideration of the decision;

                             (ii)  in the case of a decision under section 61AZF—a person applies to the Administrative Appeals Tribunal for a review of the decision;

                            (iii)  in any case—a person applies to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to the decision;

then:

                     (c)  despite subsection (1), the ACMA must not enter any other registrable media group in relation to that licence area in the Register under that subsection during the period (the pending period) when that application has not been finalised unless the ACMA is satisfied that, assuming that the decision were not to be set aside or revoked, the coming into existence of the media group does not have the result that:

                              (i)  an unacceptable media diversity situation comes into existence in relation to the licence area of a commercial radio broadcasting licence; or

                             (ii)  if an unacceptable media diversity situation already exists in relation to the licence area of a commercial radio broadcasting licence—there is a reduction in the number of points in the licence area; and

                     (d)  if the ACMA is satisfied that another registrable media group in relation to that licence area has come into existence during the pending period—subsection (3) has effect, in relation to the other registrable media group, as if the relevant notification, or the last of the relevant notifications, as the case may be, had been received on the first day after the end of the pending period.

             (6)  For the purposes of subsection (5), an application for reconsideration of a decision is taken not to have been finalised during the period of 28 days beginning on:

                     (a)  if, because of the operation of subsection 61AZF(9), the decision is taken to be affirmed—the day on which the decision is taken to have been affirmed; or

                     (b)  in any other case—the day on which the decision on the reconsideration is notified to the person concerned.

             (7)  For the purposes of subsection (5), if:

                     (a)  a person applied to the Administrative Appeals Tribunal for a review of a decision; and

                     (b)  the Administrative Appeals Tribunal makes a decision on the application;

the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (b) is made.

             (8)  For the purposes of subsection (5), if:

                     (a)  a person applied to the Administrative Appeals Tribunal for a review of a decision; and

                     (b)  the Administrative Appeals Tribunal made a decision on the application; and

                     (c)  a person appeals from the decision to the Federal Court; and

                     (d)  the Court makes a decision on the appeal;

the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (d) is made.

             (9)  For the purposes of subsection (5), if:

                     (a)  a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to a decision; and

                     (b)  the court makes a decision on the application;

the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (b) is made.

           (10)  For the purposes of subsection (5), if:

                     (a)  a person applied to a court for an order of review, a writ of mandamus or prohibition, or an injunction, in relation to a decision; and

                     (b)  the court made a decision on the application; and

                     (c)  the decision became the subject of an appeal; and

                     (d)  the court or another court makes a decision on the appeal; and

                     (e)  the decision mentioned in paragraph (d) could be the subject of an appeal;

the application is taken not to have been finalised during the period of 28 days beginning on the day on which the decision mentioned in paragraph (d) is made.

           (11)  The regulations may provide that, in specified circumstances, an application is taken, for the purposes of subsection (5), not to have been finalised during a period ascertained in accordance with the regulations.

           (12)  The regulations may extend the 28‑day period referred to in subsection (6), (7), (8), (9) or (10).

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

             (1)  If the ACMA is satisfied that a registered media group has ceased to exist on or after 1 February 2007, the ACMA must remove the group’s entry from the Register.

             (2)  For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

             (3)  If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must remove the relevant entry within 2 business days after receiving the notification or the last of the notifications.

             (4)  If, under subsection (1), the ACMA removes a group’s entry from the Register, the ACMA must include in the Register a note to the effect that the removal is unconfirmed.

61AZB  Registration of change of controller of registered media group

             (1)  If the ACMA is satisfied that:

                     (a)  a person who is not a registered controller of a registered media group has become a controller of the group on or after 1 February 2007; or

                     (b)  a registered controller of a registered media group has ceased to be a controller of the group on or after 1 February 2007;

the ACMA must:

                     (c)  if paragraph (a) applies—alter the group’s entry in the Register by adding the name of the controller concerned; or

                     (d)  if paragraph (b) applies—alter the group’s entry in the Register by omitting the name of the controller concerned.

             (2)  For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

             (3)  If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant alteration within 2 business days after receiving the notification or the last of the notifications.

             (4)  If the ACMA makes an alteration under subsection (1), the ACMA must include in the Register a note to the effect that the alteration is unconfirmed.

61AZC  Registration of change of composition of media group

             (1)  If the ACMA is satisfied that:

                     (a)  one or more of the media operations in a registered media group have ceased to be in that group on or after 1 February 2007; and

                     (b)  the group continues in existence;

the ACMA must alter the group’s entry in the Register by omitting the name or names of the media operations referred to in paragraph (a).

             (2)  For the purposes of subsection (1), the ACMA may rely on one or more notifications given, or purportedly given, under Division 6 on or after 1 February 2007.

             (3)  If the ACMA relies on a notification or notifications given, or purportedly given, under Division 6, the ACMA must make the relevant alteration within 2 business days after receiving the notification or the last of the notifications.

             (4)  If the ACMA makes an alteration under subsection (1), the ACMA is to include in the Register a note to the effect that the alteration is unconfirmed.

61AZCA  ACMA must deal with notifications in order of receipt

             (1)  For the purposes of sections 61AY, 61AZ, 61AZA, 61AZB and 61AZC, the ACMA must deal with notifications given, or purportedly given, under Division 6 in order of receipt.

             (2)  Subsection (1) has effect subject to subsection 61AZ(5).

61AZD  Conditional transactions

Entry of media group

             (1)  If:

                     (a)  a person is a party to a proposed transaction; and

                     (b)  the proposed transaction is subject to the condition that the ACMA enters a proposed media group in the Register; and

                     (c)  the person requests the ACMA to assume, for the purposes of this Subdivision, that the proposed transaction:

                              (i)  had been completed; and

                             (ii)  were not subject to that condition; and

                     (d)  the ACMA is satisfied that:

                              (i)  the parties to the proposed transaction are acting in good faith; and

                             (ii)  if the media group were to be entered in the Register on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the making of the relevant entry in the Register;

then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).

Removal of entry of media group

             (2)  If:

                     (a)  a person is a party to a proposed transaction; and

                     (b)  the proposed transaction is subject to the condition that the ACMA removes a media group’s entry from the Register; and

                     (c)  the person requests the ACMA to assume, for the purposes of this Subdivision, that the proposed transaction:

                              (i)  had been completed; and

                             (ii)  were not subject to that condition; and

                     (d)  the ACMA is satisfied that:

                              (i)  the parties to the proposed transaction are acting in good faith; and

                             (ii)  if the media group’s entry were to be removed from the Register on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the removal of the relevant entry from the Register;

then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).

Alteration of entry of media group

             (3)  If:

                     (a)  a person is a party to a proposed transaction; and

                     (b)  the proposed transaction is subject to the condition that the ACMA alters a media group’s entry in the Register; and

                     (c)  the person requests the ACMA to assume, for the purposes of this Subdivision, that the proposed transaction:

                              (i)  had been completed; and

                             (ii)  were not subject to that condition; and

                     (d)  the ACMA is satisfied that:

                              (i)  the parties to the proposed transaction are acting in good faith; and

                             (ii)  if the media group’s entry in the Register were to be altered on the basis of the assumption mentioned in paragraph (c)—the proposed transaction will be completed within 5 business days after the making of the relevant alteration in the Register;

then, for the purposes of this Subdivision, the ACMA may make the assumption mentioned in paragraph (c).

Requests

             (4)  A request under subsection (1), (2) or (3) must be:

                     (a)  in a form approved in writing by the ACMA; and

                     (b)  accompanied by such information as the ACMA requires.

             (5)  An approved form of a request may provide for verification by statutory declaration of information accompanying requests.

61AZE  Review and confirmation of entries and alterations etc.

Review

             (1)  If the ACMA:

                     (a)  enters a media group in the Register under subsection 61AY(1) or 61AZ(1); or

                     (b)  removes a media group’s entry from the Register under subsection 61AZA(1); or

                     (c)  makes an alteration to a media group’s entry in the Register under subsection 61AZB(1) or 61AZC(1);

the ACMA must review the entry, removal or alteration, and make a decision:

                     (d)  confirming the relevant entry, removal or alteration; or

                     (e)  cancelling the relevant entry, removal or alteration.

Confirmation

             (2)  If the ACMA confirms the relevant entry, removal or alteration, the ACMA must remove from the Register the note stating that the entry, removal or alteration is unconfirmed.

Cancellation

             (3)  If the ACMA cancels an entry, the ACMA must:

                     (a)  remove the entry from the Register; and

                     (b)  remove from the Register the note stating that the entry is unconfirmed.

             (4)  If the ACMA cancels the removal of an entry, the ACMA must:

                     (a)  restore the entry to the Register; and

                     (b)  remove from the Register the note stating that the removal is unconfirmed.

             (5)  If the ACMA cancels an alteration, the ACMA must:

                     (a)  reverse the alteration; and

                     (b)  remove from the Register the note stating that the alteration is unconfirmed.

ACMA not required to rely on notifications

             (6)  To avoid doubt, in exercising its powers under subsection (1), the ACMA is not required to rely on a notification given, or purportedly given, under Division 6.

Conditional transactions

             (7)  If:

                     (a)  under subsection (1), the ACMA reviews an entry or alteration; and

                     (b)  the entry or alteration was made on the assumption that a proposed transaction had been completed (see section 61AZD); and

                     (c)  the ACMA is not satisfied that the proposed transaction was completed within 5 business days after the making of the entry or alteration;

the ACMA must make a decision under subsection (1) cancelling the entry or alteration.

             (8)  If:

                     (a)  under subsection (1), the ACMA reviews a removal of an entry; and

                     (b)  the removal was done on the assumption that a proposed transaction had been completed (see section 61AZD); and

                     (c)  the ACMA is not satisfied that the proposed transaction was completed within 5 business days after the removal;

the ACMA must make a decision under subsection (1) to cancel the removal.

ACMA may request additional information

             (9)  If:

                     (a)  under subsection (1), the ACMA reviews an entry, removal or alteration; and

                     (b)  the ACMA considers that additional information is required before the ACMA can make a decision under subsection (1);

the ACMA may, within 14 days after the relevant entry, removal or alteration, by written notice given to a person, request the person to provide that information.

Deadline

           (10)  If the ACMA does not, within 28 days after:

                     (a)  doing whichever of the following is applicable:

                              (i)  entering a media group in the Register under subsection 61AY(1) or 61AZ(1);

                             (ii)  removing a media group’s entry from the Register under subsection 61AZA(1);

                            (iii)  making an alteration to a media group’s entry in the Register under subsection 61AZB(1) or 61AZC(1); or

                     (b)  if the ACMA has requested further information—receiving that further information;

make a decision under subsection (1):

                     (c)  confirming the relevant entry, removal or alteration; or

                     (d)  cancelling the relevant entry, removal or alteration;

the ACMA is taken to have made a decision under subsection (1) at the end of that 28‑day period confirming the relevant entry, removal or alteration.

61AZF  Reconsideration of decisions

Applications for reconsideration of decisions

             (1)  A person:

                     (a)  whose interests are affected by a decision under subsection 61AZE(1); and

                     (b)  who is dissatisfied with the decision;

may apply to the ACMA for the ACMA to reconsider the decision.

             (2)  The application must:

                     (a)  be in a form approved in writing by the ACMA; and

                     (b)  set out the reasons for the application.

             (3)  The application must be made within 7 days after the taking of the action required by subsection 61AZE(2), (3), (4) or (5) to give effect to the decision.

             (4)  An approved form of an application may provide for verification by statutory declaration of statements in applications.

Reconsideration of decisions—application

             (5)  Upon receiving an application under subsection (1), the ACMA must:

                     (a)  reconsider the decision; and

                     (b)  affirm or revoke the decision.

             (6)  The ACMA’s decision on reconsideration of a decision has effect as if it had been made under subsection 61AZE(1).

             (7)  The ACMA must give to the applicant a notice stating its decision on the reconsideration.

ACMA may request additional information

             (8)  If:

                     (a)  an application is made under subsection (1); and

                     (b)  the ACMA considers that additional information is required before the ACMA can make a decision under subsection (5);

the ACMA may, within 14 days after receiving the application, by written notice given to:

                     (c)  the applicant; or

                     (d)  any other person;

request the applicant or other person to provide that information.

             (9)  If the ACMA does not, within 28 days after:

                     (a)  receiving an application under subsection (1); or

                     (b)  if the ACMA has requested further information—receiving that further information;

make a decision under subsection (5), the ACMA is taken to have made a decision under subsection (5) at the end of that 28‑day period affirming the original decision.

Reconsideration of decisions—ACMA’s own initiative

           (10)  The ACMA may, at any time:

                     (a)  reconsider a decision made under subsection 61AZE(1); and

                     (b)  affirm or revoke the decision.

           (11)  The ACMA’s decision on reconsideration of a decision has effect as if it had been made under subsection 61AZE(1).

61AZG  Corrections of clerical errors or obvious defects

                   The ACMA may alter the Register for the purposes of correcting a clerical error or an obvious defect in the Register.

61AZH  Regulations

                   The regulations may make further provision about the operation of the Register.


 

Division 5BDisclosure of cross‑media relationships

61BA  Definitions

                   In this Division:

media operation means:

                     (a)  a commercial television broadcasting licence; or

                     (b)  a commercial radio broadcasting licence; or

                     (c)  a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence.

prime‑time hours means the hours:

                     (a)  beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and

                     (b)  ending at 10 am on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

set of media operations means:

                     (a)  a commercial television broadcasting licence and a commercial radio broadcasting licence that have the same licence area; or

                     (b)  a commercial television broadcasting licence and a newspaper that is associated with the licence area of the licence; or

                     (c)  a commercial radio broadcasting licence and a newspaper that is associated with the licence area of the licence.

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

Scope

             (1)  This section applies if:

                     (a)  a person is in a position to exercise control of each media operation in a set of media operations; and

                     (b)  a commercial television broadcasting licence is in the set; and

                     (c)  the licensee broadcasts matter that is wholly or partly about:

                              (i)  the business affairs of a commercial radio broadcasting licensee whose licence is in the set; or

                             (ii)  the business affairs of the publisher of a newspaper that is in the set.

Note:          For business affairs, see section 61BH.

Requirement to disclose cross‑media relationship

             (2)  If subparagraph (1)(c)(i) applies, the commercial television broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial television broadcasting licensee and the commercial radio broadcasting licensee.

             (3)  It is sufficient if the statement under subsection (2) is to the effect that there is a cross‑media relationship between the commercial television broadcasting licensee and the commercial radio broadcasting licensee.

             (4)  If subparagraph (1)(c)(ii) applies, the commercial television broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial television broadcasting licensee and the publisher of the newspaper.

             (5)  It is sufficient if the statement under subsection (4) is to the effect that there is a cross‑media relationship between the commercial television broadcasting licensee and the publisher of the newspaper.

How statement is to be broadcast

             (6)  A statement under subsection (2) or (4) must be broadcast in a way that will adequately bring it to the attention of a reasonable person who may have viewed the broadcast mentioned in paragraph (1)(c).

             (7)  The regulations may provide that subsection (6) is taken to have been complied with if the statement is broadcast in the manner, and at the time, specified in, or ascertained in accordance with, the regulations.

61BC  Choice of disclosure method—commercial radio broadcasting licensee

Notice of choice may be given to the ACMA

             (1)  A commercial radio broadcasting licensee may give the ACMA a written notice making a choice that section 61BE apply to the licensee with effect from a Sunday specified in the notice.

Note:          If a notice is not given, section 61BD applies to the licensee.

When notice must be given

             (2)  A notice under subsection (1) must be given at least 5 business days before the Sunday specified in the notice.

Duration of notice

             (3)  A notice under subsection (1):

                     (a)  comes into force at the beginning of the Sunday specified in the notice; and

                     (b)  unless sooner revoked, remains in force indefinitely.

Revocation of notice

             (4)  If a notice under subsection (1) is in force in relation to a commercial radio broadcasting licensee, the licensee may, by written notice given to the ACMA, revoke the subsection (1) notice with effect from the end of a Saturday specified in the revocation notice.

             (5)  A notice under subsection (4) must be given at least 5 business days before the Saturday specified in the notice.

Notices to be available on the internet

             (6)  If a notice is in force under subsection (1), the ACMA must make a copy of the notice available on the internet.

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

Scope

             (1)  This section applies if:

                     (a)  a person is in a position to exercise control of each media operation in a set of media operations; and

                     (b)  a commercial radio broadcasting licence is in the set; and

                     (c)  the licensee broadcasts matter that is wholly or partly about:

                              (i)  the business affairs of a commercial television broadcasting licensee whose licence is in the set; or

                             (ii)  the business affairs of the publisher of a newspaper that is in the set; and

                     (d)  a notice under subsection 61BC(1) is not in force in relation to the commercial radio broadcasting licensee.

Note:          For business affairs, see section 61BH.

Requirement to disclose cross‑media relationship

             (2)  If subparagraph (1)(c)(i) applies, the commercial radio broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.

             (3)  It is sufficient if the statement under subsection (2) is to the effect that there is a cross‑media relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.

             (4)  If subparagraph (1)(c)(ii) applies, the commercial radio broadcasting licensee must also broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

             (5)  It is sufficient if the statement under subsection (4) is to the effect that there is a cross‑media relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

How statement is to be broadcast

             (6)  A statement under subsection (2) or (4) must be broadcast in a way that will adequately bring it to the attention of a reasonable person who may have listened to the broadcast mentioned in paragraph (1)(c).

             (7)  The regulations may provide that subsection (6) is taken to have been complied with if the statement is broadcast in the manner, and at the time, specified in, or ascertained in accordance with, the regulations.

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

Scope

             (1)  This section applies if:

                     (a)  a person is in a position to exercise control of each media operation in a set of media operations; and

                     (b)  a commercial radio broadcasting licence is in the set; and

                     (c)  a notice under subsection 61BC(1) is in force in relation to the commercial radio broadcasting licensee.

Requirement to disclose cross‑media relationship

             (2)  If a commercial television broadcasting licence is in the set, the commercial radio broadcasting licensee must regularly broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.

             (3)  It is sufficient if the statement under subsection (2) is to the effect that there is a cross‑media relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee.

             (4)  If a newspaper is in the set, the commercial radio broadcasting licensee must regularly broadcast a statement describing (whether in summary form or otherwise) the relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

             (5)  It is sufficient if the statement under subsection (4) is to the effect that there is a cross‑media relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

How statement is to be broadcast

             (6)  Statements under subsection (2) or (4) are to be broadcast in a way, and with a frequency, that is reasonably likely to ensure that the audience of the commercial radio broadcasting service during prime‑time hours is aware that:

                     (a)  in the case of statements under subsection (2)—there is a relationship between the commercial radio broadcasting licensee and the commercial television broadcasting licensee; or

                     (b)  in the case of statements under subsection (4)—there is a relationship between the commercial radio broadcasting licensee and the publisher of the newspaper.

             (7)  A commercial radio broadcasting licensee is taken to have complied with subsection (6) if:

                     (a)  the statement is broadcast at least once each day during prime‑time hours; and

                     (b)  the statement is broadcast in a way that will adequately bring it to the attention of a reasonable person who may have listened to the broadcast of the statement.

             (8)  The regulations may provide that a commercial radio broadcasting licensee is taken to have complied with subsection (6) if the statement is broadcast in the manner, and at the times, ascertained in accordance with the regulations.

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

Scope

             (1)  This section applies if:

                     (a)  a person is in a position to exercise control of each media operation in a set of media operations; and

                     (b)  a newspaper is in the set; and

                     (c)  material published in a particular edition of the newspaper is wholly or partly about:

                              (i)  the business affairs of a commercial television broadcasting licensee whose licence is in the set; or

                             (ii)  the business affairs of a commercial radio broadcasting licensee whose licence is in the set.

Note:          For business affairs, see section 61BH.

Requirement to disclose cross‑media relationship

             (2)  If subparagraph (1)(c)(i) applies, the publisher of the newspaper must cause to be published in the same edition of the newspaper a statement describing (whether in summary form or otherwise) the relationship between the publisher and the commercial television broadcasting licensee.

             (3)  It is sufficient if the statement under subsection (2) is to the effect that there is a cross‑media relationship between the publisher and the commercial television broadcasting licensee.

             (4)  If subparagraph (1)(c)(ii) applies, the publisher of the newspaper must cause to be published in the same edition of the newspaper a statement describing (whether in summary form or otherwise) the relationship between the publisher and the commercial radio broadcasting licensee.

             (5)  It is sufficient if the statement under subsection (4) is to the effect that there is a cross‑media relationship between the publisher and the commercial radio broadcasting licensee.

How statement is to be published

             (6)  A statement under subsection (2) or (4) must be published in a way that will adequately bring it to the attention of a reasonable person who may have read the material mentioned in paragraph (1)(c).

             (7)  The regulations may provide that subsection (6) is taken to have been complied with if the statement is published in the manner specified in, or ascertained in accordance with, the regulations.

Offence

             (8)  A person is guilty of an offence if:

                     (a)  the person is subject to a requirement under this section; and

                     (b)  the person omits to do an act; and

                     (c)  the omission breaches the requirement.

Penalty for contravention of this subsection: 2,000 penalty units.

61BG  Exception—political communication

                   Sections 61BB, 61BD, 61BE and 61BF do not apply to the extent (if any) that they would infringe any constitutional doctrine of implied freedom of political communication.

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

Matter or material about business affairs—what is included and excluded

             (1)  A reference in this Division to matter or material that is wholly or partly about the business affairs of a commercial television broadcasting licensee, a commercial radio broadcasting licensee or a newspaper publisher:

                     (a)  includes a reference to matter or material, where, having regard to:

                              (i)  the nature of the matter or material; and

                             (ii)  the way in which the matter or material is presented;

                            it would be reasonable to conclude that the object, or one of the objects, of the broadcast of the matter or the publication of the material, as the case may be, was to:

                            (iii)  promote; or

                            (iv)  otherwise influence members of the public, or of a section of the public, to view, to listen to, or to read;

                            matter broadcast, or to be broadcast, by the licensee, or material published, or to be published, in the newspaper, as the case may be; and

                     (b)  does not include a reference to:

                              (i)  a journalistic acknowledgment of a program or article as being the source of particular information; or

                             (ii)  advertising matter or advertising material, where a reasonable person would be able to distinguish the advertising matter or advertising material from other matter or material; or

                            (iii)  a program guide (see subsection (2)); or

                            (iv)  exempt matter or exempt material (see subsection (4)).

Program guide

             (2)  For the purposes of this section, a program guide is matter or material that consists of no more than:

                     (a)  a schedule of:

                              (i)  the television programs provided by 2 or more television broadcasting services; or

                             (ii)  the radio programs provided by 2 or more radio broadcasting services; or

                     (b)  a combination of:

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

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

where the matter or material does not single out one of those services for special promotion.

             (3)  For the purposes of subsection (2):

                     (a)  a television broadcasting service is:

                              (i)  a commercial broadcasting service that provides television programs; or

                             (ii)  a national broadcasting service that provides television programs; and

                     (b)  a radio broadcasting service is:

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

                             (ii)  a national broadcasting service that provides radio programs.

Exempt matter or exempt material

             (4)  The Minister may, by legislative instrument, determine that:

                     (a)  matter included in a specified class of matter is exempt matter for the purposes of this section; and

                     (b)  material included in a specified class of material is exempt material for the purposes of this section.

             (5)  A determination under subsection (4) has effect accordingly.

Advertising

             (6)  This section does not, by implication, affect the meaning of the expression advertising when used in any other provision of this Act.


 

Division 5CLocal news and information requirements for regional commercial radio broadcasting licensees

Subdivision AIntroduction

61CA  Definitions

                   In this Division:

approved local content plan means an approved local content plan under Subdivision C.

benchmark year means:

                     (a)  in relation to a regional commercial radio broadcasting licence where a single trigger event has occurred—the 52‑week period ending on the Saturday before the day on which the trigger event occurred; and

                     (b)  in relation to a regional commercial radio broadcasting licence where 2 or more trigger events have occurred—the 52‑week period ending on the Saturday before the day on which the most recent trigger event occurred.

community service announcement means community information, or community promotional material, for the broadcast of which the licensee does not receive any consideration in cash or in kind.

controller has the same meaning as in Division 5A.

designated local content program means a program about matters of local significance, other than:

                     (a)  a news bulletin; or

                    (aa)  a weather bulletin; or

                     (b)  a community service announcement; or

                     (c)  an emergency warning.

draft local content plan means a draft local content plan under Subdivision C.

eligible local news bulletins means local news bulletins that meet the following requirements:

                     (a)  the bulletins are broadcast on at least 5 days during the week;

                     (b)  the bulletins broadcast on each of those days have a total duration of at least 12.5 minutes;

                     (c)  the bulletins are broadcast during prime‑time hours;

                     (d)  the bulletins adequately reflect matters of local significance;

                     (e)  none of the bulletins consists wholly of material that has previously been broadcast in the licence area concerned.

eligible local weather bulletins means local weather bulletins that meet the following requirements:

                     (a)  the bulletins are broadcast on at least 5 days during the week;

                     (b)  the bulletins are broadcast during prime‑time hours.

emergency service agency means:

                     (a)  a police force or service; or

                     (b)  a fire service; or

                     (c)  a body that runs an emergency service specified in the regulations.

local (except in sections 61CR and 61CS) has a meaning affected by section 61CC.

metropolitan licence area means:

                     (a)  a licence area in which is situated the General Post Office of the capital city of:

                              (i)  New South Wales; or

                             (ii)  Victoria; or

                            (iii)  Queensland; or

                            (iv)  Western Australia; or

                             (v)  South Australia; or

                     (b)  the licence area known as Western Suburbs Sydney RA1.

news bulletin means a regularly scheduled news bulletin.

prime‑time hours means the hours:

                     (a)  beginning at 6 am each day or, if another time is prescribed, beginning at that prescribed time each day; and

                     (b)  ending at 10 am on the same day or, if another time is prescribed, ending at that prescribed time on the same day.

regional commercial radio broadcasting licence means a commercial radio broadcasting licence that has a regional licence area.

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

Register has the same meaning as in Division 5A.

registrable media group has the same meaning as in Division 5A.

trigger event has the meaning given by section 61CB.

weather bulletin means a regularly scheduled weather bulletin that is transmitted:

                     (a)  as a stand‑alone bulletin; or

                     (b)  in conjunction with a news bulletin.

week means a 7‑day period that begins on a Sunday.

61CAA  This Division does not apply in relation to certain licences

                   This Division does not apply in relation to:

                     (a)  a remote area service radio licence; or

                     (b)  a regional racing service radio licence.

Note:          This Division does not apply to a regional commercial radio broadcasting licence allocated under subsection 40(1): see section 50A.

61CB  Trigger event

Transfer of licence

             (1)  For the purposes of this Division, if:

                     (a)  a regional commercial radio broadcasting licence is held by a person; and

                     (b)  the person transfers the licence to another person; and

                     (c)  the transfer occurred before the commencement of this paragraph;

the transfer of the licence is a trigger event for the licence.

Change in control of licence

          (1A)  For the purposes of this Division, if either of the following events (a control event) happens after the commencement of this subsection:

                     (a)  a person starts to be in a position to exercise control of a regional commercial radio broadcasting licence;

                     (b)  a person ceases to be in a position to exercise control of a regional commercial radio broadcasting licence;

the control event is a trigger event for the licence.

          (1B)  Subsection (1A) does not apply to a control event if:

                     (a)  the control event is attributable to a transfer of shares from one person (the first person) to another person (the second person); and

                     (b)  there is no consideration for the transfer; and

                     (c)  the second person is a near relative of the first person.

Note:          For near relative, see subsection 6(1).

          (1C)  Subsection (1A) does not apply to a control event if the control event is attributable to circumstances beyond the control of each person who was, immediately before the control event occurred, in a position to exercise control of the regional commercial radio broadcasting licence concerned.

          (1D)  The regulations may provide for exemptions from subsection (1A).

Formation of new registrable media group

             (2)  For the purposes of this Division, if:

                     (a)  a registrable media group comes into existence; and

                     (b)  the media group is not already entered in the Register; and

                     (c)  a regional commercial radio broadcasting licence is in the group;

the coming into existence of the group is a trigger event for the licence.

          (2A)  Subsection (2) does not apply to a registrable media group that comes into existence after the commencement of this subsection only because the ACMA varies, under section 29, the designation of a licence area.

          (2B)  Subsection (2) does not apply to a registrable media group that comes into existence after the commencement of this subsection only because the ACMA makes or varies a determination, under section 30, of the licence area population of a licence area.

          (2C)  The regulations may provide for exemptions from subsection (2).

Change of controller of registrable media group

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

                     (a)  either:

                              (i)  a person who is not a controller of a registrable media group becomes a controller of the group; or

                             (ii)  a controller of a registrable media group ceases to be a controller of the group; and

                     (b)  a regional commercial radio broadcasting licence is in the group;

the change of controller is a trigger event for the licence.

             (4)  Subsection (3) does not apply to a change of controller of a registrable media group if the change of controller is attributable to circumstances beyond the control of each person who was, immediately before the change occurred, a controller of the registrable media group.

             (5)  The regulations may provide for exemptions from subsection (3).

61CC  What is local?

             (1)  The ACMA may, by legislative instrument, define what is meant by the expression local for the purposes of the application of:

                     (a)  this Division (other than sections 61CR and 61CS); or

                     (b)  a specified provision of this Division (other than sections 61CR and 61CS);

to a specified licence area.

             (2)  In making an instrument under subsection (1), the ACMA must have regard to:

                     (a)  the areas where separate programming is provided; and

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

Note:          Program includes advertising or sponsorship matter—see the definition of program in subsection 6(1).

Subdivision BMinimum service standards for local news and information

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

             (1)  If a trigger event for a regional commercial radio broadcasting licence occurs, then, after the occurrence of the trigger event, the licensee must meet:

                     (a)  minimum service standards for local news; and

                    (aa)  minimum service standards for local weather; and

                     (b)  minimum service standards for local community service announcements; and

                     (c)  minimum service standards for emergency warnings; and

                     (d)  if a declaration is in force under subsection 61CE(6)—minimum service standards for designated local content programs.

             (2)  A licensee (the relevant licensee) is not required to meet any of the minimum service standards referred to in subsection (1):

                     (a)  if:

                              (i)  the ACMA, by legislative instrument, specifies a period, in relation to one or more specified regional commercial radio broadcasting licensees; and

                             (ii)  the period does not exceed 5 weeks; and

                            (iii)  the licensees specified in the instrument consist of or include the relevant licensee;

                            on a day during that period; or

                     (b)  if the ACMA, by legislative instrument, specifies a period that does not exceed 5 weeks—on a day during that period; or

                     (c)  if neither paragraph (a) nor (b) applies—on a day during the 5‑week period beginning on the second Sunday in December each year.

A period specified under paragraph (a) or (b) may be a recurring period.

61CE  Minimum service standards for local news and information

Local news

             (1)  For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for local news during a particular week if, during that week, the number of eligible local news bulletins broadcast by the licensee is at least:

                     (a)  the local news target number; or

                     (b)  if the average weekly number of eligible local news bulletins broadcast under the licence during the benchmark year is a number greater than the local news target number—the greater number.

             (2)  For the purposes of subsection (1), the local news target number is:

                     (a)  5; or

                     (b)  if the Minister, by legislative instrument, declares that a greater number is the local news target number—the greater number.

Local weather

          (2A)  For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for local weather during a particular week if, during that week, the number of eligible local weather bulletins broadcast by the licensee is at least the local weather target number.

          (2B)  For the purposes of subsection (2A), the local weather target number is:

                     (a)  5; or

                     (b)  if the Minister, by legislative instrument, declares that a greater number is the local weather target number—the greater number.

Local community service announcements

             (3)  For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for local community service announcements during a particular week if, during that week, the number of local community service announcements broadcast by the licensee is at least the community service target number.

             (4)  For the purposes of subsection (3), the community service target number is:

                     (a)  1; or

                     (b)  if the Minister, by legislative instrument, declares that a greater number is the local community service target number—the greater number.

Emergency warnings

             (5)  For the purposes of this Subdivision, a commercial radio broadcasting licensee meets the minimum service standards for emergency warnings during a particular week if:

                     (a)  on one or more occasions during the week, one or more emergency service agencies asked the licensee to broadcast emergency warnings, and the licensee broadcast those warnings as and when asked to do so by those emergency service agencies; or

                     (b)  there was no occasion during the week when an emergency service agency asked the licensee to broadcast an emergency warning.

Designated local content programs

             (6)  For the purposes of this Subdivision, the Minister may, by legislative instrument, declare that a regional commercial radio broadcasting licence meets the minimum service standards for designated local content programs during a particular week if, during that week, the licensee meets such requirements in relation to designated local content programs as are specified in the declaration.

Subdivision CLocal content plans

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

             (1)  If a trigger event for a regional commercial radio broadcasting licence occurs, the licensee must give the ACMA:

                     (a)  a draft local content plan for the licence; and

                     (b)  a statement setting out such information about the licensee’s broadcasting operations as the ACMA requires;

within 90 days after the day on which the trigger event occurs.

             (2)  If the licensee does not comply with subsection (1), the ACMA may, by legislative instrument, determine that a plan in the terms specified in the determination is the approved local content plan for the licence.

Replacement of approved local content plan

             (3)  If an approved local content plan (the original plan) for a commercial radio broadcasting licence is in force:

                     (a)  a draft local content plan given under subsection (1) for the licence must be expressed to replace the original plan; and

                     (b)  if the draft local content plan becomes an approved local content plan for the licence—the original plan ceases to be in force.

             (4)  If:

                     (a)  the ACMA makes a determination under subsection (2) in relation to a commercial radio broadcasting licence; and

                     (b)  an approved local content plan (the original plan) for the licence was in force immediately before the determination takes effect;

then:

                     (c)  the approved local content plan as determined by the ACMA replaces the original plan; and

                     (d)  the original plan ceases to be in force.

61CG  Content of draft or approved local content plan

                   A draft or approved local content plan for a regional commercial radio broadcasting licence must set out how the licensee will comply with section 61CD.

61CH  Approval of draft local content plan

             (1)  If a commercial radio broadcasting licensee gives the ACMA a draft local content plan under section 61CF, the ACMA must:

                     (a)  approve the plan; or

                     (b)  refuse to approve the plan.

Approval of plan

             (2)  In deciding whether to approve a draft local content plan, the ACMA must have regard to:

                     (a)  whether the plan is adequate; and

                     (b)  whether the plan is sufficiently detailed; and

                     (c)  any relevant information set out in the paragraph 61CF(1)(b) statement; and

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

             (3)  If the ACMA approves the draft local content plan, the plan becomes an approved local content plan for the licence.

             (4)  If the ACMA approves the draft local content plan, the ACMA must give the licensee a written notice setting out the decision.

Refusal to approve plan

             (5)  If the ACMA refuses to approve the draft local content plan, the ACMA may, by legislative instrument, determine that a plan in the terms specified in the determination is the approved local content plan for the licence.

             (6)  If the ACMA refuses to approve the draft local content plan, the ACMA must give the licensee a written notice setting out the reasons for the refusal.

Occurrence of trigger event when ACMA’s decision is pending

             (7)  If:

                     (a)  a commercial radio broadcasting licensee gives the ACMA a draft local content plan under section 61CF as the result of the occurrence of a trigger event for the licence; and

                     (b)  another trigger event for the licence occurs before the ACMA makes a decision under subsection (1) in relation to the plan;

then:

                     (c)  the ACMA is taken to have refused to approve the plan; and

                     (d)  subsections (5) and (6) do not apply to that refusal.

61CJ  Register of approved local content plans

             (1)  The ACMA is to maintain a Register in which the ACMA includes approved local content plans as in force from time to time.

             (2)  The Register is to be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the internet.

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

             (1)  This section applies if:

                     (a)  an approved local content plan (the current plan) for a regional commercial radio broadcasting licence is in force; and

                     (b)  the Minister makes a declaration under:

                              (i)  paragraph 61CE(2)(b); or

                            (ia)  paragraph 61CE(2B)(b); or

                             (ii)  paragraph 61CE(4)(b); or

                            (iii)  subsection 61CE(6); and

                     (c)  in the case of a declaration under paragraph 61CE(2)(b)—the effect of the declaration is to raise the licensee’s minimum service standards for local news.

             (2)  The licensee must give the ACMA:

                     (a)  a draft variation of the current plan; and

                     (b)  a statement setting out such information about the licensee’s broadcasting operations as the ACMA requires;

within 90 days after the day on which the declaration is made.

             (3)  If the licensee does not comply with subsection (2), the ACMA may, by legislative instrument, vary the current plan.

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

                   If an approved local content plan (the current plan) for a regional commercial radio broadcasting licence is in force, the licensee may give the ACMA:

                     (a)  a draft variation of the current plan; and

                     (b)  a statement setting out such information about the licensee’s broadcasting operations as the ACMA requires.

61CM  Approval of draft variation

             (1)  If, under section 61CK or 61CL, a commercial radio broadcasting licensee gives the ACMA a draft variation of an approved local content plan (the current plan), the ACMA must:

                     (a)  approve the variation; or

                     (b)  refuse to approve the variation.

Approval of variation

             (2)  The ACMA must not approve the variation unless the ACMA is satisfied that, if the licensee were to give the ACMA a draft local content plan in the same terms as the current plan as proposed to be varied, the ACMA would approve that draft.

             (3)  If the ACMA approves the variation, the current plan is varied accordingly.

             (4)  If the ACMA approves the variation, the ACMA must give the licensee a written notice setting out the decision.

Refusal to approve variation

             (5)  If the ACMA refuses to approve the variation, the ACMA must give the licensee a written notice setting out the reasons for the refusal.

             (6)  If the ACMA refuses to approve the variation, the ACMA may, by legislative instrument, vary the current plan.

Occurrence of trigger event when ACMA’s decision is pending

             (7)  If:

                     (a)  under section 61CK or 61CL, a commercial radio broadcasting licensee gives the ACMA a draft variation of an approved local content plan; and

                     (b)  a trigger event for the licence occurs after the receipt of the variation but before the ACMA makes a decision under subsection (1) in relation to the variation;

then:

                     (c)  the ACMA is taken to have refused to approve the variation; and

                     (d)  subsections (5) and (6) do not apply to that refusal.

61CN  ACMA may review approved local content plan

             (1)  If an approved local content plan for a regional commercial radio broadcasting licence is in force, the ACMA must review the plan at least once every 3 years.

             (2)  If, after such a review, the ACMA considers that the approved local content plan should be varied, the ACMA may, by legislative instrument, vary the plan.

61CP  Compliance with approved local content plan

                   If an approved local content plan for a regional commercial radio broadcasting licence is in force, the licensee must take all reasonable steps to ensure that the plan is complied with.

61CPA  Licensee must submit annual compliance report

             (1)  This section applies if an approved local content plan for a regional commercial radio broadcasting licence was in force during the whole or a part of a financial year.

             (2)  The regional commercial radio broadcasting licensee must, within 3 months after the end of the financial year, give the ACMA a report about the licensee’s compliance with the approved local content plan during the whole or the part, as the case may be, of the financial year.

             (3)  A report under subsection (2) must:

                     (a)  be in a form approved in writing by the ACMA; and

                     (b)  set out such information as the ACMA requires.

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

             (1)  The Minister may give the ACMA a written direction about the exercise of the powers conferred on the ACMA by this Subdivision.

             (2)  The ACMA must comply with a direction under subsection (1).

Subdivision D—Other local content requirements

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

             (1)  The Minister may give the ACMA a written direction requiring the ACMA to conduct an investigation under section 170 into:

                     (a)  whether the ACMA should exercise its powers under section 43 to impose conditions requiring regional commercial radio broadcasting licensees to broadcast programs about matters of local significance; and

                     (b)  if so, the content of those conditions.

             (2)  The ACMA must comply with a direction under subsection (1).

             (3)  This section does not limit the powers conferred on the ACMA by section 43 or 170.

             (4)  This section does not limit the powers conferred on the Minister by section 61CS.

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

             (1)  The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose conditions requiring regional commercial radio broadcasting licensees to broadcast programs about matters of local significance.

             (2)  The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose one or more specified conditions requiring regional commercial radio broadcasting licensees to broadcast programs about matters of local significance.

             (3)  The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose conditions requiring a specified regional commercial radio broadcasting licensee to broadcast programs about matters of local significance.

             (4)  The Minister may give the ACMA a written direction requiring the ACMA to exercise its powers under section 43 to impose one or more specified conditions requiring a specified regional commercial radio broadcasting licensee to broadcast programs about matters of local significance.

             (5)  The ACMA must comply with a direction under subsection (1), (2), (3) or (4).

             (6)  This section does not limit the powers conferred on the ACMA by section 43.

61CT  Regular reviews of local content requirements

             (1)  At least once every 3 years, the Minister must cause to be conducted a review of the following matters:

                     (a)  the operation of sections 43B and 43C;

                     (b)  the operation of this Division;

                     (c)  the operation of paragraph 8(2)(c) of Schedule 2;

                     (d)  whether sections 43B and 43C should be amended;

                     (e)  whether this Division should be amended;

                      (f)  whether paragraph 8(2)(c) of Schedule 2 should be amended.

             (2)  For the purposes of facilitating the conduct of a review under subsection (1), the ACMA must make available information about regional commercial radio broadcasting licensees’ compliance with:

                     (a)  licence conditions imposed as a result of section 43B or 43C; and

                     (b)  licence conditions imposed as a result of an investigation directed under section 61CR; and

                     (c)  licence conditions imposed as a result of a direction under section 61CS; and

                     (d)  the licence condition set out in paragraph 8(2)(c) of Schedule 2.

             (3)  The Minister may give the ACMA a written direction requiring the ACMA to make available specified information for the purposes of facilitating the conduct of a review under subsection (1).

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

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

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


 

Division 6Notification provisions

62  Requirement to notify control and directorships

Notification by licensee—general

             (1)  Each commercial television broadcasting licensee, commercial radio broadcasting licensee and datacasting transmitter licensee must, within 3 months after the end of each financial year, give to the ACMA in writing:

                     (a)  details of the persons who, to the knowledge of the licensee, were in a position to exercise control of the licence at the end of that financial year; and

                     (b)  the name of each person who was a director of the licensee at the end of that financial year.

             (2)  The details are to be provided in a form approved in writing by the ACMA.

Notification by restricted datacasting licensee

          (2A)  Each restricted datacasting licensee must, within 3 months after the end of each financial year that ends during the digital radio moratorium period for the licence area of a commercial radio broadcasting licence, give to the ACMA in writing:

                     (a)  details of the persons who, to the knowledge of the restricted datacasting licensee, were in a position to exercise control of the restricted datacasting licence at the end of that financial year; and

                     (b)  the name of each person who was a director of the restricted datacasting licensee at the end of that financial year.

          (2B)  The details are to be provided in a form approved in writing by the ACMA.

Notification by publisher of newspaper

             (3)  Each publisher of a newspaper that is associated with the licence area of a commercial television broadcasting licence or a commercial radio broadcasting licence must, within 3 months after the end of each financial year, give to the ACMA in writing:

                     (a)  details of the persons who, to the knowledge of the publisher, were in a position to exercise control of the newspaper at the end of that financial year; and

                     (b)  if the publisher is a company—the name of each person who was a director of the company at the end of that financial year.

             (4)  The details are to be provided in a form approved in writing by the ACMA.

Offence

             (5)  A person commits an offence if:

                     (a)  the person is subject to a requirement under subsection (1), (2A) or (3); and

                     (b)  the person omits to do an act; and

                     (c)  the omission breaches the requirement.

Penalty for contravention of this subsection:

                     (a)  if the breach relates to a commercial television broadcasting licence, a datacasting transmitter licence or a newspaper—500 penalty units; or

                     (b)  otherwise—50 penalty units.

63  Requirement to notify changes in control

Notification by licensee—general

             (1)  If a commercial television broadcasting licensee, commercial radio broadcasting licensee or datacasting transmitter licensee becomes aware that:

                     (a)  a person who was not in a position to exercise control of the licence has become in a position to exercise control of the licence; or

                     (b)  a person who was in a position to control the licence has ceased to be in that position;

the licensee must, within 5 days after becoming so aware, notify the ACMA in writing of that event.

             (2)  The details are to be provided in a form approved in writing by the ACMA.

Notification by restricted datacasting licensee

          (2A)  If, during the digital radio moratorium period for the licence area of a commercial radio broadcasting licence, a restricted datacasting licensee becomes aware that:

                     (a)  a person who was not in a position to exercise control of the restricted datacasting licence has become in a position to exercise control of the restricted datacasting licence; or

                     (b)  a person who was in a position to control the restricted datacasting licence has ceased to be in that position;

the restricted datacasting licensee must, within 5 days after becoming so aware, notify the ACMA in writing of that event.

          (2B)  The details are to be provided in a form approved in writing by the ACMA.

Notification by publisher of newspaper