Contents
Part 1—Preliminary 1
1............................ Short title............................................................................ 1
2............................ Commencement.................................................................. 1
3............................ Objects of this Act.............................................................. 1
4............................ Regulatory policy................................................................ 3
5............................ Role of the ACMA............................................................. 5
6............................ Interpretation....................................................................... 6
7............................ Interpretation—meaning of control................................... 19
8............................ Interpretation—shareholding interests, voting interests, dividend interests and winding‑up interests 19
8A......................... Captioning taken to be part of program............................. 21
8AA...................... Designated community radio broadcasting licence............ 21
8AB....................... Digital program enhancement content taken to be a radio program 22
8AC....................... Digital radio start‑up day.................................................. 23
8AD...................... Deemed radio broadcasting licence areas.......................... 25
8AF....................... Regional racing service radio licence................................ 26
8B.......................... Remote Indigenous community........................................ 28
9............................ Act to bind the Crown...................................................... 28
10.......................... Extension of Act to the external Territories....................... 28
10A....................... Application of the Criminal Code..................................... 28
Part 2—Categories of broadcasting services 29
11.......................... Categories of broadcasting services.................................. 29
11A....................... Dual categorisation of international broadcasting services 29
12.......................... Method of regulating particular services........................... 29
13.......................... National broadcasting services.......................................... 30
14.......................... Commercial broadcasting services.................................... 31
15.......................... Community broadcasting services.................................... 31
16.......................... Subscription broadcasting services................................... 32
17.......................... Subscription narrowcasting services................................. 32
18.......................... Open narrowcasting services............................................ 32
18A....................... International broadcasting services................................... 33
19.......................... ACMA may determine additional criteria or clarify existing criteria 35
20.......................... Determinations and clarifications to be disallowable by the Parliament 35
21.......................... Requests to ACMA to decide which category a broadcasting service falls into 35
22.......................... Matters to be considered by ACMA................................. 37
Part 3—Planning of the broadcasting services bands 39
23.......................... Planning criteria................................................................ 39
26.......................... Preparation of licence area plans....................................... 39
26AA.................... Compliance with television licence area plan.................... 42
26C........................ Licence area plans not required to deal with certain digital radio broadcasting services 43
26D....................... Licence area plans—how digital radio broadcasting services may be dealt with 44
29.......................... Designation of licence areas.............................................. 45
30.......................... ACMA may determine population figures........................ 45
31.......................... Minister may reserve capacity for national broadcasters or community broadcasters 46
32.......................... Reservations to be disallowable by the Parliament............ 46
33.......................... Development of technical planning guidelines.................. 46
34.......................... Alternative uses of broadcasting services bands............... 47
Part 4—Commercial television broadcasting licences and commercial radio broadcasting licences 49
Division 1—Allocation of licences 49
35C........................ Digital radio moratorium................................................... 49
35D....................... Exception to the digital radio moratorium—failure to provide a digital commercial radio broadcasting service.......................................................................................... 49
36.......................... ACMA to determine system for allocating licences.......... 51
36A....................... Commercial radio broadcasting licences to provide analog or digital commercial radio broadcasting services.......................................................................................... 51
37.......................... When licences must not be allocated................................. 53
37A....................... Limitation on number of commercial television broadcasting licences 53
38.......................... ACMA to advertise for applications for certain licences... 54
38A....................... Additional commercial television licences in single markets 54
38B........................ Additional commercial television licences in 2‑station markets 56
38C........................ Commercial television broadcasting licences—services provided with the use of a satellite 60
39.......................... Additional commercial radio licences in single markets.... 64
40.......................... Allocation of other licences............................................... 67
41.......................... When persons are regarded as suitable............................. 69
Division 2—Services authorised by licences 71
41C........................ Services authorised by commercial television broadcasting licences 71
41CA..................... Services authorised by commercial television broadcasting licences allocated under section 38C 71
41D....................... Services authorised by commercial radio broadcasting licences 76
Division 3—Licence conditions 79
42.......................... Conditions of commercial broadcasting licences............... 79
43.......................... ACMA may impose additional conditions........................ 79
43A....................... Material of local significance—regional aggregated commercial television broadcasting licences 80
43AA.................... Local news to be provided to section 38C licensees by regional commercial television broadcasting licensees.......................................................................................... 81
43AB..................... Commercial television programs to be provided to section 38C licensees by metropolitan commercial television broadcasting licensees....................................... 84
43AC..................... Commercial television programs to be provided to section 38C licensees by remote terrestrial licensees.......................................................................................... 86
43AD.................... Compensation for acquisition of property......................... 87
43B........................ Local presence—regional commercial radio broadcasting licences 88
43C........................ Local content—regional commercial radio broadcasting licences 89
43D....................... Special licence conditions relating to digital radio commercial broadcasting services 92
44.......................... Matters to which conditions may relate............................. 95
Division 4—General provisions 96
45.......................... Duration of licences.......................................................... 96
46.......................... Applications for renewal................................................... 96
47.......................... ACMA to renew licences unless it is aware of special circumstances 96
48.......................... Transfer of commercial broadcasting licences................... 97
49.......................... Surrender of commercial broadcasting licences................ 97
Part 5—Control of commercial broadcasting licences and datacasting transmitter licences 98
Division 1—Preliminary 98
50A....................... This Part does not apply in relation to licences allocated under section 38C or subsection 40(1) 98
50.......................... Interpretation—knowledge of company............................ 98
51.......................... Means of dealing with overlapping licence areas.............. 98
51A....................... This Part does not apply to certain channel B datacasting transmitter licences 99
52.......................... Changes in licence area populations not to put persons in breach of this Part 99
52A....................... Newspapers—additional constitutional basis.................... 99
Division 2—Limitation on control 100
Subdivision A—Commercial broadcasting licences 100
53.......................... Limitation on control of commercial television broadcasting licences 100
54.......................... Limitation on control of commercial radio broadcasting licences 100
Subdivision B—Commercial television broadcasting licences and datacasting transmitter licences 100
54A....................... Limitation on control of commercial television broadcasting licences and datacasting transmitter licences........................................................................................ 100
Subdivision C—Commercial radio broadcasting licences and restricted datacasting licences 101
54B........................ Limitation on control of commercial radio broadcasting licences and restricted datacasting licences during the digital radio moratorium period....................................... 101
Division 3—Limitation on directorships 102
Subdivision A—Television and radio 102
55.......................... Limitation on numbers of directorships—television....... 102
56.......................... Limitation on numbers of directorships—radio.............. 103
Subdivision B—Television and datacasting 103
56A....................... Limitation on directorships—television and datacasting. 103
Division 5—Newspapers associated with licence areas 105
59.......................... Newspapers associated with commercial television or radio broadcasting licence areas 105
Division 5A—Media diversity 108
Subdivision A—Introduction 108
61AA.................... Definitions...................................................................... 108
61AB..................... Unacceptable media diversity situation........................... 110
61AC..................... Points.............................................................................. 110
61AD.................... Statutory control rules..................................................... 113
61AE..................... Shared content test.......................................................... 113
61AEA.................. Unacceptable 3‑way control situation............................. 114
61AF..................... Overlapping licence areas............................................... 114
Subdivision B—Prohibition of transactions that result in an unacceptable media diversity situation coming into existence etc. 115
61AG.................... Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—offence............................................................................ 115
61AH.................... Prohibition of transactions that result in an unacceptable media diversity situation coming into existence—civil penalty............................................................................ 115
61AJ...................... Prior approval of transactions that result in an unacceptable media diversity situation coming into existence etc......................................................................................... 116
61AK..................... Extension of time for compliance with prior approval notice 118
61AL..................... Breach of prior approval notice—offence....................... 119
61AM.................... Breach of prior approval notice—civil penalty................ 120
Subdivision BA—Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence etc. 120
61AMA................. Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence—offence............................................................................ 120
61AMB................. Prohibition of transactions that result in an unacceptable 3‑way control situation coming into existence—civil penalty............................................................................ 121
61AMC................. Prior approval of transactions that result in an unacceptable 3‑way control situation coming into existence etc......................................................................................... 121
61AMD................. Extension of time for compliance with prior approval notice 123
61AME................. Breach of prior approval notice—offence....................... 124
61AMF................. Breach of prior approval notice—civil penalty................ 124
Subdivision C—Remedial directions 125
61AN.................... Remedial directions—unacceptable media diversity situation.. 125
61ANA................. Remedial directions—unacceptable 3‑way control situation 128
61AP..................... Extension of time for compliance with remedial direction 129
61AQ.................... Breach of remedial direction—offence............................ 131
61AR..................... Breach of remedial direction—civil penalty.................... 131
Subdivision D—Enforceable undertakings 132
61AS..................... Acceptance of undertakings............................................ 132
61AT..................... Enforcement of undertakings.......................................... 132
Subdivision E—Register of Controlled Media Groups 133
61AU.................... Register of Controlled Media Groups............................. 133
61AV.................... How a media group is to be entered in the Register........ 134
61AW.................... Explanatory notes may be included in the Register......... 134
61AX.................... Continuity of media group.............................................. 134
61AY.................... Initial registration of media groups................................. 135
61AZ..................... Registration of newly‑formed media group.................... 135
61AZA.................. De‑registration of media group that has ceased to exist.. 139
61AZB.................. Registration of change of controller of registered media group 139
61AZC.................. Registration of change of composition of media group... 140
61AZCA............... ACMA must deal with notifications in order of receipt.. 141
61AZD.................. Conditional transactions.................................................. 141
61AZE................... Review and confirmation of entries and alterations etc... 143
61AZF................... Reconsideration of decisions.......................................... 146
61AZG.................. Corrections of clerical errors or obvious defects............. 148
61AZH.................. Regulations..................................................................... 148
Division 5B—Disclosure of cross‑media relationships 149
61BA..................... Definitions...................................................................... 149
61BB..................... Disclosure of cross‑media relationship by commercial television broadcasting licensee 149
61BC..................... Choice of disclosure method—commercial radio broadcasting licensee 151
61BD..................... Disclosure of cross‑media relationship by commercial radio broadcasting licensee—business affairs disclosure method............................................................................ 152
61BE..................... Disclosure of cross‑media relationship by commercial radio broadcasting licensee—regular disclosure method........................................................................................ 153
61BF..................... Disclosure of cross‑media relationship by publisher of newspaper 155
61BG..................... Exception—political communication............................... 156
61BH..................... Matter or material about the business affairs of a broadcasting licensee or newspaper publisher 157
Division 5C—Local news and information requirements for regional commercial radio broadcasting licensees 160
Subdivision A—Introduction 160
61CA..................... Definitions...................................................................... 160
61CAA.................. This Division does not apply in relation to certain licences 162
61CB..................... Trigger event................................................................... 163
61CC..................... What is local?.................................................................. 165
Subdivision B—Minimum service standards for local news and information 165
61CD..................... Licensee must meet minimum service standards for local news and information 165
61CE..................... Minimum service standards for local news and information 166
Subdivision C—Local content plans 169
61CF..................... Licensee must submit draft local content plan to the ACMA 169
61CG..................... Content of draft or approved local content plan.............. 170
61CH..................... Approval of draft local content plan................................ 170
61CJ...................... Register of approved local content plans......................... 171
61CK..................... Approved local content plan must be varied if minimum service standards are imposed or increased 171
61CL..................... Approved local content plan may be varied by the licensee 172
61CM.................... Approval of draft variation............................................. 172
61CN..................... ACMA may review approved local content plan............ 173
61CP..................... Compliance with approved local content plan................. 174
61CPA.................. Licensee must submit annual compliance report............. 174
61CQ..................... Minister may direct the ACMA about the exercise of its powers 174
Subdivision D—Other local content requirements 175
61CR..................... Minister may direct the ACMA to conduct an investigation about other local content requirements 175
61CS..................... Minister may direct the ACMA to impose licence conditions relating to local content 175
61CT..................... Regular reviews of local content requirements................ 176
Division 6—Notification provisions 178
63.......................... Requirement to notify changes in control........................ 178
64.......................... Person who obtains control of a licence or newspaper must notify the ACMA 180
65A....................... Strict liability offences.................................................... 181
65B........................ Designated infringement notice provisions..................... 181
Division 7—Approval of temporary breaches 182
66.......................... Offence for breaches without approval........................... 182
67.......................... Applications for prior approval of temporary breaches... 183
68.......................... Extension of time for compliance with notice................. 184
69.......................... Breach of notice under section 67 to constitute an offence 185
Division 8—Action by the ACMA 186
70.......................... Notices by the ACMA.................................................... 186
71.......................... Extension of time for compliance with notice................. 187
72.......................... Breach of notice under section 70 to constitute an offence 188
Division 9—Special provision for small markets 189
73.......................... Additional licence under section 38A not to result in breach of ownership limits 189
73A....................... Additional licence allocated under section 38B not to result in breach of control rules 189
Division 10—Prior opinions by the ACMA 190
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.................................................................. 190
Division 11—Miscellaneous 192
75.......................... Register of matters under this Part.................................. 192
76.......................... Continuing offences........................................................ 192
77.......................... Part has effect notwithstanding Competition and Consumer Act 193
78.......................... Part not to invalidate appointments................................. 193
Part 6—Community broadcasting licences 194
79.......................... Interpretation................................................................... 194
79A....................... Application..................................................................... 194
80.......................... ACMA to advertise for applications for BSB community broadcasting licences 194
81.......................... When licences must not be allocated............................... 195
82.......................... Other community broadcasting licences.......................... 195
83.......................... When persons are regarded as suitable........................... 195
84.......................... Allocation of community broadcasting licences.............. 196
84A....................... Designated community radio broadcasting licences to provide analog or digital services 197
85.......................... ACMA not required to allocate community broadcasting licence to any applicant 199
85A....................... Services authorised by designated community radio broadcasting licences 199
86.......................... Conditions of community broadcasting licences............. 201
87.......................... ACMA may impose additional conditions on community broadcasting licences 201
87A....................... Additional conditions on CTV licences.......................... 202
87B........................ Special licence condition relating to digital community radio broadcasting services 204
88.......................... Matters to which conditions may relate........................... 204
89.......................... Duration of community broadcasting licences................ 205
90.......................... Applications for renewal of community broadcasting licences 205
91.......................... ACMA may renew community broadcasting licences.... 206
91A....................... Transfer of community broadcasting licences................. 207
92.......................... Surrender of community broadcasting licences............... 209
Part 6A—Temporary community broadcasting licences 210
92A....................... Interpretation................................................................... 210
92B........................ Temporary community broadcasting licences................. 210
92C........................ Applicants for temporary community broadcasting licences 210
92D....................... When applicants and licensees are regarded as suitable.. 211
92E........................ Criteria for deciding whether to allocate a licence........... 212
92F........................ Licences to accord with alternative planning procedures. 213
92G....................... Licence area, timing conditions and licence period.......... 213
92H....................... Conditions of temporary community broadcasting licences 213
92J......................... ACMA may vary conditions or periods, or impose new conditions 214
92K........................ Duration of temporary community broadcasting licences 215
92L........................ Surrender of temporary community broadcasting licences 215
Part 7—Subscription television broadcasting services 216
Division 1—Allocation of subscription television broadcasting licences 216
95.......................... When subscription television broadcasting licence must not be allocated 216
96.......................... Allocation of other subscription television broadcasting licences 216
97.......................... Requests to Australian Competition and Consumer Commission 217
98.......................... Suitability for allocation of licence.................................. 218
98D....................... Compensation................................................................. 219
Division 2—Conditions of subscription television broadcasting licence 220
99.......................... Conditions applicable to subscription television broadcasting licence 220
100........................ Matters to which conditions may relate........................... 221
Division 2A—Eligible drama expenditure 223
Subdivision A—Introduction 223
103A..................... Simplified outline............................................................ 223
103B...................... Definitions...................................................................... 224
103C...................... Channel providers........................................................... 227
103D..................... Part‑channel providers.................................................... 228
103E...................... Pass‑through providers................................................... 228
103F...................... Part‑pass‑through providers........................................... 229
103G..................... Supply of channel or package......................................... 229
103H..................... Non‑designated pre‑production expenditure not to be counted unless principal photography has commenced........................................................................................ 230
103J....................... Cash‑based accounting—when expenditure is incurred.. 230
103JA.................... When designated script development expenditure is incurred in relation to an eligible drama program etc......................................................................................... 230
103K...................... When expenditure incurred on a new eligible drama program 233
103L...................... ACMA may make determinations about what constitutes program expenditure 233
103M..................... Expenditure to be nominated only once in meeting licence conditions 235
Subdivision B—Channel provider supplies channel 236
103N..................... 10% minimum eligible drama expenditure—channel provider supplies channel 236
103NA.................. Carry‑forward eligible drama expenditure...................... 238
103P...................... Shortfall of eligible drama expenditure—channel provider supplies channel exclusively to licensee 238
103Q..................... Shortfall of eligible drama expenditure—channel provider supplies channel to multiple licensees 240
Subdivision C—Pass‑through provider supplies channel 243
103R...................... 10% minimum eligible drama expenditure—pass‑through provider supplies channel 243
103RA................... Carry‑forward eligible drama expenditure...................... 245
103S...................... Shortfall of eligible drama expenditure—pass‑through provider supplies channel 246
Subdivision D—Licensee supplies all program material 247
103T...................... 10% minimum eligible drama expenditure—licensee supplies all program material 247
103TA................... Carry‑forward eligible drama expenditure...................... 249
Subdivision E—Part‑channel provider supplies package of programs 250
103U..................... 10% minimum eligible drama expenditure—part‑channel provider supplies package of programs 250
103UA.................. Carry‑forward eligible drama expenditure...................... 251
103V..................... Shortfall of eligible drama expenditure—part‑channel provider supplies a package of programs exclusively to licensee........................................................................... 252
103W..................... Shortfall of eligible drama expenditure—part‑channel provider supplies a package of programs to multiple licensees.......................................................................... 254
Subdivision F—Part‑pass‑through provider supplies package of programs 257
103X..................... 10% minimum eligible drama expenditure—part‑pass‑through provider supplies package of programs 257
103XA.................. Carry‑forward eligible drama expenditure...................... 258
103Y..................... Shortfall of eligible drama expenditure—part‑pass‑through provider supplies package of programs 259
Subdivision G—Licensee supplies part of program material 261
103Z...................... 10% minimum eligible drama expenditure—licensee supplies part of program material 261
103ZAA................ Carry‑forward eligible drama expenditure...................... 262
Subdivision H—Annual returns 263
103ZA................... Licensee to lodge annual return....................................... 263
103ZB................... Channel provider and part‑channel provider to lodge annual return 264
103ZC................... ACMA may inquire into the correctness of an annual return 265
103ZD................... Nominations to be attached to annual returns.................. 265
Subdivision J—Miscellaneous 266
103ZG................... Anti‑avoidance—transactions between persons not at arm’s length 266
103ZH................... Expenditure to be expressed in Australian currency....... 266
Division 6—Miscellaneous 267
113........................ Transfer of subscription television broadcasting licence. 267
114........................ Surrender of subscription television broadcasting licence 267
115........................ Minister may protect the free availability of certain types of programs 267
116........................ Certain arrangements not to result in control or in persons being associates 268
116A..................... Use of additional capacity............................................... 269
116B...................... Application of section 51 of the Competition and Consumer Act 269
Part 8—Subscription broadcasting and narrowcasting class licences 270
117........................ Determination of class licences....................................... 270
118........................ Conditions of class licences............................................ 270
119........................ Matters to which conditions may relate........................... 270
120........................ Variation of class licences............................................... 271
121........................ Class licences and variations to be disallowable by the Parliament 271
Part 8A—Restrictions on subscription television broadcasting services in regional areas etc. 272
121A..................... Simplified outline............................................................ 272
121B...................... Definitions...................................................................... 272
121C...................... Identical program items................................................... 273
121D..................... Continuity of program items........................................... 273
121E...................... ACMA permission is required to provide certain television services in regional areas 274
Part 8B—International broadcasting licences 276
Division 1—Introduction 276
121F...................... Simplified outline............................................................ 276
121FAA................ Definitions...................................................................... 277
Division 2—Allocation of international broadcasting licences 278
121FA................... Application for international broadcasting licence........... 278
121FB................... Corporate status and suitability....................................... 278
121FC................... Unsuitable applicant........................................................ 280
121FD................... Australia’s national interest............................................. 281
121FE.................... Allocation of licence....................................................... 283
Division 3—Obligations of international broadcasting licensees 284
121FF.................... Conditions of international broadcasting licences........... 284
Division 4—Remedies 285
121FG................... Prohibition on providing an international broadcasting service without a licence 285
121FH................... Remedial directions—unlicensed international broadcasting services 285
121FHA................ Breach of remedial direction—offence............................ 286
121FHB................ Breach of remedial direction—civil penalty provision.... 286
121FJ.................... Offence for breach of conditions of international broadcasting licence 286
121FJA................. Civil penalty provision relating to breach of conditions of international broadcasting licences 287
121FJB.................. Remedial directions—licence conditions......................... 287
121FJC.................. Breach of remedial direction—offence............................ 288
121FJD................. Breach of remedial direction—civil penalty provision.... 288
121FK................... Cancellation of licence if service does not commence within 2 years 288
121FL.................... Formal warning, or cancellation or suspension of licence, where service is contrary to Australia’s national interest............................................................................ 289
Division 4A—Nominated broadcaster declarations 292
121FLA................. Object of this Division.................................................... 292
121FLB................. Applications for nominated broadcaster declarations...... 292
121FLC................. Making a nominated broadcaster declaration.................. 292
121FLD................. Effect of nominated broadcaster declaration.................... 294
121FLE................. Conditions of nominated broadcaster declarations.......... 295
121FLF................. Offence for breach of conditions of nominated broadcaster declaration 295
121FLG................. Revocation of nominated broadcaster declaration........... 296
121FLH................. Cancellation of licence if declaration ceases to be in force and licensee is not an Australian company 298
121FLJ.................. Register of nominated broadcaster declarations.............. 299
Division 5—ACMA to assist the Minister for Foreign Affairs 300
121FM.................. Report about compliance with international broadcasting guidelines 300
121FN................... Records of broadcasts..................................................... 300
Division 6—Miscellaneous 301
121FP.................... International broadcasting guidelines.............................. 301
121FQ................... Surrender of international broadcasting licences............. 301
121FR................... Complaints about international broadcasting services..... 301
121FS.................... Statements about decisions of the Minister for Foreign Affairs 301
Part 9—Content rules, program standards and codes of practice 303
121G..................... Australian content—transmission quota......................... 303
122........................ Program standards for children’s programs and Australian content 307
123........................ Development of codes of practice................................... 309
123B...................... Review by the ACMA—application of code of practice to section 38C licences 314
124........................ ACMA to maintain Register of codes of practice........... 315
125........................ ACMA may determine program standards where codes of practice fail or where no code of practice developed........................................................................................ 315
126........................ Consultation on standards............................................... 316
127........................ Notification of determination or variation or revocation of standards 316
128........................ Standards and codes to be amendable by the Parliament. 316
129........................ Limitation of ACMA’s power in relation to standards... 317
130........................ Application of the Competition and Consumer Act........ 317
Part 9A—Technical standards 318
130A..................... Technical standards for digital transmission—television etc. 318
130AA.................. Technical standards for digital transmission—radio etc.. 320
130AB................... Technical standards relating to the operation of multiplex transmitters 321
130AC................... Technical standards for digital transmission of television services provided with the use of a satellite 321
130B...................... Technical standards for domestic digital reception equipment—television etc. 322
130BA................... Technical standards for domestic digital reception equipment—radio etc. 325
130BB................... Technical standards for domestic digital reception equipment—television services provided with the use of a satellite............................................................................ 327
Part 9B—Industry codes and industry standards 331
Division 1—Simplified outline 331
130C...................... Simplified outline............................................................ 331
Division 2—Interpretation 332
130D..................... Industry codes................................................................ 332
130E...................... Industry standards.......................................................... 332
130F...................... Industry activities............................................................ 332
130G..................... Sections of the industry.................................................. 334
130H..................... Participants in a section of the industry........................... 335
Division 3—General principles relating to industry codes and industry standards 336
130J....................... Statement of regulatory policy........................................ 336
130K...................... Examples of matters that may be dealt with by industry codes and industry standards 336
130L...................... Industry codes and industry standards not to deal with certain matters 337
Division 4—Industry codes 338
130M..................... Registration of industry codes........................................ 338
130N..................... ACMA may request codes............................................. 339
130P...................... Publication of notice where no body or association represents a section of the industry 340
130Q..................... Replacement of industry codes....................................... 341
Division 5—Industry standards 342
130R...................... ACMA may determine an industry standard if a request for an industry code is not complied with 342
130S...................... ACMA may determine industry standard where no industry body or association formed 343
130T...................... ACMA may determine industry standards—total failure of industry codes 344
130U..................... ACMA may determine industry standards—partial failure of industry codes 345
130V..................... Compliance with industry standards............................... 347
130W..................... Formal warnings—breach of industry standards............ 347
130X..................... Variation of industry standards....................................... 347
130Y..................... Revocation of industry standards.................................... 348
Division 6—Register of industry codes and industry standards 349
130ZA................... ACMA to maintain Register of industry codes and industry standards 349
Part 9C—Access to commercial television broadcasting services provided with the use of a satellite 350
130ZBA................ Simplified outline............................................................ 350
130ZB................... Objectives of conditional access scheme—South Eastern Australia TV3 licence area and Northern Australia TV3 licence area............................................................. 350
130ZBB................. Objectives of conditional access scheme—Western Australia TV3 licence area 355
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 361
130ZCAB.............. ACMA may request development of replacement conditional access scheme 362
130ZCA................ Registration of conditional access scheme formulated by the ACMA 363
130ZD................... Replacement of conditional access scheme..................... 366
130ZE.................... ACMA to maintain register of conditional access schemes 366
130ZF.................... ACMA may direct a scheme administrator to issue a reception certificate etc. 367
130ZFA................. Adequate reception......................................................... 370
130ZG................... Applicable terrestrial digital commercial television broadcasting services 371
130ZH................... Declared service‑deficient areas...................................... 372
Part 9D—Captioning 375
Division 1—Introduction 375
130ZJ.................... Simplified outline............................................................ 375
130ZK................... Definitions...................................................................... 375
130ZKA................ Definition of channel provider....................................... 379
130ZKB................. Definition of part‑channel provider............................... 379
130ZKC................. Supply of channel or package......................................... 380
130ZL.................... Designated viewing hours.............................................. 380
130ZM.................. This Part does not apply to foreign language programs.. 380
130ZN................... This Part does not apply to programs that consist wholly of music 381
130ZO................... Captioning service provided for part of program............ 381
130ZP.................... Multiple subscription television services provided by licensee 381
130ZQ................... Television service provided in a period........................... 382
Division 2—Captioning obligations of commercial television broadcasting licensees and national broadcasters 383
130ZR................... Captioning obligations—basic rule................................. 383
130ZS.................... Captioning obligations—special rules for multi‑channelled services 386
130ZUA................ Exemption orders and target reduction orders—unjustifiable hardship 388
130ZUAA............. Effect of target reduction order....................................... 393
130ZUB................ Certain breaches to be disregarded.................................. 395
Division 3—Captioning obligations of subscription television licensees 397
130ZV................... Annual captioning targets—subscription television licensees 397
130ZVA................ Categories for subscription television movie services..... 400
130ZW.................. Categories for subscription television general entertainment services 402
130ZX................... Exemptions—certain subscription television services provided before 1 July 2022 403
130ZY................... Exemption orders and target reduction orders—unjustifiable hardship 409
130ZYA................ Effect of target reduction order....................................... 413
130ZZ.................... Captioning services for repeats of television programs... 414
130ZZAA.............. Captioning services for simultaneously transmitted television programs 414
130ZZAB.............. Certain breaches to be disregarded.................................. 415
Division 4—Captioning standards 416
130ZZA................. Captioning standards...................................................... 416
Division 5—Emergency warnings 418
130ZZB................. Emergency warnings...................................................... 418
Division 6—Reports and record‑keeping 420
130ZZC................. Annual compliance reports............................................. 420
130ZZD................. Record‑keeping............................................................... 421
Division 7—Review of this Part etc. 423
130ZZE................. Review of this Part etc.................................................... 423
Part 10—Remedies for breaches of licensing provisions 424
Division 1—Offences for providing unlicensed services 424
131........................ Prohibition on providing a commercial television broadcasting service without a licence 424
132........................ Prohibition on providing a subscription television broadcasting service without a licence 424
133........................ Prohibition on providing a commercial radio broadcasting service without a licence 424
134........................ Prohibition on providing a community television broadcasting service without a licence 424
135........................ Prohibition on providing a community radio broadcasting service without a licence 425
136........................ Continuing offences........................................................ 425
Division 1A—Civil penalty provisions relating to unlicensed services 426
136A..................... Prohibition on providing a commercial television broadcasting service without a licence 426
136B...................... Prohibition on providing a subscription television broadcasting service without a licence 426
136C...................... Prohibition on providing a commercial radio broadcasting service without a licence 426
136D..................... Prohibition on providing a community television broadcasting service without a licence 426
136E...................... Prohibition on providing a community radio broadcasting service without a licence 427
136F...................... Continuing breaches....................................................... 427
Division 2—Action by ACMA where a person provides a service without a licence 428
137........................ Remedial directions—unlicensed services...................... 428
138........................ Breach of remedial direction—offences.......................... 428
138A..................... Breach of remedial direction—civil penalty provision.... 429
Division 3—Action in relation to breaches by licensees 430
139........................ Offence for breach of conditions of licences and class licences 430
140........................ Continuing offences........................................................ 432
140A..................... Civil penalty provisions relating to breach of conditions of licences and class licences 432
141........................ Remedial directions—licence conditions, class licences and codes of practice 433
142........................ Breach of remedial direction—offences.......................... 436
142A..................... Breach of remedial direction—civil penalty provision.... 437
143........................ Suspension and cancellation........................................... 438
Division 4—Action in relation to class licences 440
144........................ Application to Federal Court........................................... 440
Part 10A—Anti‑hoarding rules 441
Division 1—Introduction 441
146A..................... Simplified outline............................................................ 441
146B...................... Definitions...................................................................... 442
146C...................... Designated events and designated series of events......... 443
146CA................... When event or series is eligible for delayed televising in the Central‑Western time zones 444
146D..................... Program suppliers........................................................... 445
Division 2—Commercial television broadcasting licensees 448
146E...................... Anti‑hoarding rule—licensees........................................ 448
146F...................... Anti‑hoarding rule—program suppliers.......................... 449
146G..................... What constitutes an offer to transfer rights to televise live events 451
146H..................... Offers to transfer rights to televise live events................ 451
146J....................... Contracts to acquire rights to televise live events must authorise the transfer of the rights 452
146K...................... Simultaneous events in a series....................................... 453
146KA................... Delayed televising in the Central‑Western time zones..... 454
Division 3—National broadcasters 457
146L...................... Anti‑hoarding rule.......................................................... 457
146M..................... What constitutes an offer to transfer rights to televise live events 458
146N..................... Offers to transfer rights to televise live events................ 459
146P...................... Contracts to acquire rights to televise live events must authorise the transfer of the rights 459
146Q..................... Simultaneous events in a series....................................... 460
146R...................... Delayed televising in the Central‑Western time zones..... 460
Part 11—Complaints to the ACMA 463
Division 1—Complaints relating to action under licences and class licences 463
147........................ Complaints relating to offences or breach of licence conditions 463
148........................ Complaints under codes of practice................................ 463
149........................ Investigation of complaints by the ACMA..................... 464
Division 2—Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS 465
150........................ Complaints relating to national broadcasting services or datacasting services provided by the ABC or SBS........................................................................................ 465
151........................ Investigation of complaints relating to the ABC or SBS by the ACMA 466
152........................ Action by ACMA where complaint justified.................. 466
153........................ ACMA may report to Minister on results of recommendation 466
Part 13—Information gathering by the ACMA 467
Division 1—Introduction 467
168........................ Obtaining of information by the ACMA........................ 467
169........................ Decision‑making by the ACMA not limited to matters discovered by investigation or hearing 467
Division 2—Investigations 468
170........................ Investigations by the ACMA.......................................... 468
171........................ Minister may direct ACMA to conduct an investigation. 468
172........................ ACMA may call for written submissions from the public 468
173........................ Notice requiring appearance for examination.................. 469
174........................ Examination on oath or affirmation................................. 469
175........................ Examination to take place in private................................ 469
176........................ Record to be made of examination.................................. 469
177........................ Production of documents for inspection......................... 470
178........................ Report on investigation................................................... 470
179........................ Publication of report....................................................... 470
180........................ Person adversely affected by report to be given opportunity to comment 471
Division 3—Hearings 472
182........................ Power to hold hearings................................................... 472
183........................ Minister may direct ACMA to hold a hearing................ 472
184........................ Procedure for conduct of hearings.................................. 472
185........................ ACMA may direct holding of conference....................... 472
186........................ Hearings to be informal, quick and economical.............. 473
187........................ Hearings to be in public except in exceptional cases....... 473
188........................ Public notice of hearings................................................. 473
189........................ Confidential material not to be published........................ 473
190........................ Directions as to private hearings..................................... 474
191........................ Constitution of ACMA for conduct of hearings............. 474
192........................ Presiding member........................................................... 474
193........................ Reconstitution of hearing panel....................................... 474
194........................ Exercise of powers in relation to conduct of hearing...... 475
195........................ Summons to give evidence or produce documents......... 475
196........................ Written submissions may be made to hearing................. 475
197........................ Evidence and submissions to be taken into account by ACMA 475
198........................ Representation at hearings.............................................. 476
199........................ Reports on hearings........................................................ 476
Division 4—General 477
200........................ Protection of members and persons giving evidence...... 477
201........................ Protection of panel conducting hearing........................... 477
202........................ Non‑compliance with requirement to give evidence........ 477
203........................ Proceedings for defamation not to lie.............................. 479
Part 14—Appeals to the Administrative Appeals Tribunal 480
204........................ Appeals to the Administrative Appeals Tribunal............ 480
205........................ Notification of decisions to include notification of reasons and appeal rights 487
Part 14A—Accounts and payment of licence fees 488
205A..................... Definitions...................................................................... 488
205B...................... Broadcasting licensees to keep accounts......................... 488
205BA................... Datacasting transmitter licensees to keep accounts.......... 490
205C...................... Payment of licence fees................................................... 491
205D..................... Penalty for unpaid licence fees........................................ 492
Part 14B—Civil penalties 496
Division 1—Ancillary contravention of civil penalty provision 496
205E...................... Ancillary contravention of civil penalty provision.......... 496
Division 2—Civil penalty orders 497
205EA................... Simplified outline............................................................ 497
205F...................... Civil penalty orders......................................................... 497
205G..................... Who may apply for a civil penalty order......................... 499
205H..................... 2 or more proceedings may be heard together................. 499
205J....................... Time limit for application for an order............................ 499
205K...................... Civil evidence and procedure rules for civil penalty orders 499
205L...................... Civil proceedings after criminal proceedings.................. 499
205M..................... Criminal proceedings during civil proceedings............... 499
205N..................... Criminal proceedings after civil proceedings.................. 500
205P...................... Evidence given in proceedings for a civil penalty order not admissible in criminal proceedings 500
205PAA................ Mistake of fact................................................................ 500
Part 14C—Injunctions 502
205PA................... Simplified outline............................................................ 502
205Q..................... Injunctions...................................................................... 502
205R...................... Interim injunctions.......................................................... 503
205S...................... Discharge etc. of injunctions........................................... 503
205T...................... Certain limits on granting injunctions not to apply.......... 503
205U..................... Other powers of the Federal Court unaffected................ 504
Part 14D—Enforceable undertakings 505
205V..................... Simplified outline............................................................ 505
205W..................... Acceptance of undertakings............................................ 505
205X..................... Enforcement of undertakings.......................................... 506
Part 14E—Infringement notices 507
205XAA............... Simplified outline............................................................ 507
205XA.................. Formal warning.............................................................. 507
205Y..................... When an infringement notice can be given...................... 507
205Z...................... Matters to be included in an infringement notice............. 508
205ZA................... Amount of penalty.......................................................... 508
205ZB................... Withdrawal of an infringement notice............................. 509
205ZC................... What happens if the penalty is paid................................. 509
205ZD................... Effect of this Part on criminal proceedings..................... 509
205ZE.................... Appointment of authorised infringement notice officer... 510
205ZF.................... Regulations..................................................................... 510
Part 15—Miscellaneous 511
206........................ Broadcasting or datacasting taken to be publication in permanent form 511
207........................ Amounts of fees............................................................. 511
209........................ Prosecutions................................................................... 511
210........................ Publication of opinions................................................... 511
211AA.................. Time when a television program is broadcast—certain terrestrial licence areas 512
211A..................... Time when a television program is broadcast—South Eastern Australia TV3 and Northern Australia TV3 licence areas.................................................................... 513
212........................ Special provisions for re‑transmission of programs....... 515
212A..................... Self‑help providers......................................................... 517
212B...................... Declared self‑help providers and excluded providers..... 519
213........................ Penalties for continuing offences.................................... 520
214........................ Procedure relating to continuing offences....................... 520
215........................ Guidelines relating to ACMA’s enforcement powers etc. 521
215B...................... Review—development and regulation of digital radio broadcasting services and restricted datacasting services........................................................................................ 522
216........................ Ministerial consultative and advisory bodies.................. 523
216A..................... Schedule 4 (digital television broadcasting).................... 523
216B...................... Schedule 5 (online services)........................................... 523
216C...................... Schedule 6 (datacasting services).................................... 523
216D..................... Schedule 7 (content services).......................................... 523
217........................ Regulations..................................................................... 523
218........................ Channel sharing.............................................................. 524
Schedule 1—Control and ownership of company interests 525
Part 1—Introduction 525
1............................ Control—general............................................................ 525
Part 2—When person is in a position to exercise control 527
2............................ When person is in a position to exercise control............. 527
3............................ When person is in a position to exercise control of a newspaper 530
4............................ Special provisions for authorised lenders....................... 532
Part 3—Deemed control 536
5............................ Explanation of examples................................................. 536
6............................ The 15% rule.................................................................. 536
7............................ Application of method through chain of companies........ 536
Part 4—Tracing of ownership 537
8............................ Tracing of ownership...................................................... 537
Schedule 2—Standard conditions 539
Part 1—Interpretation 539
1............................ Definitions...................................................................... 539
2............................ Interpretation—certain things do not amount to broadcasting of advertisements 542
Part 2—Special conditions 544
3............................ Broadcasting of political or controversial material.......... 544
3A......................... Broadcasting of election advertisements......................... 544
4............................ Identification of certain political matter........................... 545
5............................ Records of matter broadcast............................................ 546
6............................ Advertisements relating to medicines.............................. 547
Part 3—Commercial television broadcasting licences 549
Division 1—General 549
7............................ Conditions of commercial television broadcasting licences 549
Division 2—Licences allocated under section 38C 554
7A......................... Common conditions........................................................ 554
7B.......................... Conditions about the provision of primary commercial television broadcasting services 554
7C.......................... Conditions about the provision of non‑primary commercial television broadcasting services 558
7D......................... Condition about the provision of local news services..... 561
7E.......................... Exemption—provision of new commercial television broadcasting services not technically feasible 562
7F.......................... Exemption—commercial television broadcasting services with the same program content 563
7G......................... Delay in commencement of new commercial television broadcasting services 564
7J........................... Program content.............................................................. 565
7L.......................... Definitions...................................................................... 566
Part 4—Commercial radio broadcasting licences 568
8............................ Standard conditions of commercial radio broadcasting licences 568
Part 5—Community broadcasting licences 572
9............................ Conditions applicable to services provided under community broadcasting licences 572
Part 6—Subscription television broadcasting licences 577
10.......................... Conditions applicable to subscription television broadcasting licences 577
Part 7—Services provided under class licences 580
11.......................... Conditions applicable to broadcasting services provided under class licences 580
An Act relating to broadcasting services, datacasting services, online services and content services, and for related purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Broadcasting Services Act 1992.
2 Commencement
(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 2001; 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 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.
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.
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 Circuit Court means the Federal Circuit Court of Australia.
Federal Court means the Federal Court of Australia.
foundation digital radio multiplex transmitter licence has the same meaning as in the Radiocommunications Act 1992.
infringement notice means an infringement notice under section 205Y.
international broadcasting guidelines means guidelines in force under section 121FP.
international broadcasting licence means a licence to provide an international broadcasting service.
international broadcasting service has the meaning given by section 18A.
legislature of a Territory means:
(a) the Legislative Assembly for the Australian Capital Territory; or
(b) the Legislative Assembly of the Northern Territory; or
(c) such other Territory legislative bodies as are prescribed.
licence means:
(a) in the definition of associate, section 7, Part 5 and Schedule 1:
(i) a licence allocated by the ACMA under this Act (other than a class licence); or
(ii) a datacasting transmitter licence; and
(b) in any other provision of this Act—a licence allocated by the ACMA under this Act (other than a class licence).
licence area means:
(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: See also section 8AD, which deals with deemed radio broadcasting 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.
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.
primary commercial television broadcasting service, in relation to a commercial television broadcasting licence, has the same meaning as in Schedule 4.
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).
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
An Indigenous community is a remote Indigenous community for the purposes of this Act if the ACMA so determines by legislative instrument.
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 2—Categories 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(1)(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 3—Planning 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.
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.
(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 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).
(1G) A television licence area plan does not need to identify a particular television broadcasting service by name.
(1M) Section 23 has 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.
Ministerial direction
(8) The Minister may, by legislative instrument, direct the ACMA about the exercise of its powers to make or vary a licence area plan for a particular area.
(9) The ACMA must comply with a direction under subsection (8).
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.
Definitions
(13) 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.
Note: For designation of licence areas, see section 29.
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.
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.
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.
Part 4—Commercial television broadcasting licences and commercial radio broadcasting licences
Division 1—Allocation of licences
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.
37A Limitation on number of commercial television broadcasting licences
The ACMA must ensure that the number of commercial television broadcasting licences that:
(a) have the same licence area; and
(b) are broadcasting services bands licences;
does not exceed 3.
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;
(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.
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.
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. |
Allocation of licence
(2) A commercial television broadcasting licence that was allocated under this section before the commencement of Schedule 2 to the Broadcasting and Other Legislation Amendment (Deregulation) Act 2015 continues in force unless it is cancelled.
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 the ACMA gives a notice under subsection (15) to a licensee, cancelling the licence for a licence area, the ACMA must, within 45 days after the giving of the notice, 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:
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:
(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 2—Services authorised by licences
41C Services authorised by commercial television broadcasting licences
(1) A commercial television broadcasting licence for a licence area authorises the licensee to provide the following services in the licence area:
(a) one or more HDTV multi‑channelled commercial television broadcasting services;
(b) one or more SDTV multi‑channelled commercial television broadcasting services.
Licences allocated under section 38C or subsection 40(1)
(2) This section does not apply to a commercial television broadcasting licence allocated under section 38C or subsection 40(1).
Definitions
(3) In this section:
HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.
SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4.
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 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 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 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 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).
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 3—Licence 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.
(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).
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).
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).
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.
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.
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 4—General 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 5—Control of commercial broadcasting licences and datacasting transmitter licences
Division 1—Preliminary
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 a provision of Division 2 or 3;
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 2—Limitation on control
Subdivision A—Commercial 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 B—Commercial 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 C—Commercial 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 3—Limitation on directorships
Subdivision A—Television 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 B—Television 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 5—Newspapers 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 5A—Media diversity
Subdivision A—Introduction
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 first radio licence area is the same as, or is entirely within, the licence area of the commercial radio broadcasting licence; 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 first radio licence area is the same as, or is entirely within, the licence area of the licence; 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 primary commercial television broadcasting service 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.
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 B—Prohibition 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 BA—Prohibition 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