Broadcasting Services Act 1992
No. 110, 1992
Compilation No. 78
Compilation date: 25 March 2015
Includes amendments up to: Act No. 22, 2015
Registered: 23 April 2015
This compilation is in 2 volumes
Volume 1: sections 1–218
Schedules 1 and 2
Volume 2: Schedules 4–7
Endnotes
Each volume has its own contents
This compilation includes commenced amendments made by Act No. 5, 2015
About this compilation
This compilation
This is a compilation of the Broadcasting Services Act 1992 that shows the text of the law as amended and in force on 25 March 2015 (the compilation date).
This compilation was prepared on 16 April 2015.
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on ComLaw (www.comlaw.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on ComLaw for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on ComLaw for the compiled law.
Self‑repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
Schedule 4—Digital television broadcasting 15
Part 1—Introduction 15
1............ Simplified outline of this Schedule.................................................... 15
2............ Definitions........................................................................................ 15
4............ Digital mode...................................................................................... 18
4A......... HDTV digital mode.......................................................................... 18
4B......... SDTV digital mode........................................................................... 18
5............ Remote licence area........................................................................... 19
5A......... SDTV multi‑channelled commercial television broadcasting service 19
5B......... HDTV multi‑channelled commercial television broadcasting service 19
5C......... SDTV multi‑channelled national television broadcasting service...... 20
5D......... HDTV multi‑channelled national television broadcasting service..... 20
Part 3—ABC/SBS television 22
36.......... Digital transmitter not to be used to provide a subscription television broadcasting service etc. 22
Part 4A—Restrictions on televising anti‑siphoning events 23
Division 1—Commercial television broadcasting services 23
41E........ SDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events.......................................................................................................... 23
41F........ HDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events.......................................................................................................... 24
41FA..... SDTV multi‑channelled commercial television broadcasting service provided under a section 38C licence—restrictions on televising anti‑siphoning events................................................... 26
41FB..... HDTV multi‑channelled commercial television broadcasting service provided under a section 38C licence—restrictions on televising anti‑siphoning events................................................... 27
41G....... Primary commercial television broadcasting service......................... 29
Division 2—National television broadcasting services 30
41K....... SDTV multi‑channelled national television broadcasting service—restrictions on televising anti‑siphoning events.......................................................................................................... 30
41L........ HDTV multi‑channelled national television broadcasting service—restrictions on televising anti‑siphoning events.......................................................................................................... 31
41LA..... SDTV multi‑channelled national television broadcasting service provided with the use of a satellite—restrictions on televising anti‑siphoning events........................................................ 33
41LB..... HDTV multi‑channelled national television broadcasting service provided with the use of a satellite—restrictions on televising anti‑siphoning events........................................................ 34
41M...... Primary national television broadcasting service............................... 35
41N....... Primary satellite national television broadcasting service.................. 36
Part 5—Transmitter access regime 37
42.......... Simplified outline.............................................................................. 37
43.......... Definitions........................................................................................ 38
43A....... Designated associated facilities......................................................... 38
44.......... Extended meaning of access.............................................................. 39
45.......... Access to broadcasting transmission towers..................................... 39
45A....... Access to designated associated facilities.......................................... 41
46.......... Access to sites of broadcasting transmission towers......................... 43
47.......... Terms and conditions of access......................................................... 45
48.......... Code relating to access...................................................................... 47
49.......... Arbitration—acquisition of property................................................. 47
50.......... Relationship between this Part and the National Transmission Network Sale Act 1998 48
Part 6—Collection of datacasting charge 49
51.......... Collection of datacasting charge........................................................ 49
52.......... Cancellation of certain exemptions from datacasting charge.............. 50
Part 10—Review of decisions 51
62.......... Review by the AAT.......................................................................... 51
63.......... Notification of decisions to include notification of reasons and appeal rights 51
Schedule 5—Online services 52
Part 1—Introduction 52
2............ Simplified outline.............................................................................. 52
3............ Definitions........................................................................................ 53
5............ Internet content that consists of a film............................................... 55
7............ Extended meaning of use.................................................................. 55
Part 2—Internet service providers 57
8............ Internet service providers.................................................................. 57
9............ Supply to the public.......................................................................... 57
Part 4—Complaints to, and investigations by, the ACMA 59
Division 1—Making of complaints to the ACMA 59
23.......... Complaints about breaches of online provider rules etc.................... 59
24.......... Form of complaint............................................................................. 59
25.......... Residency etc. of complainant........................................................... 59
Division 2—Investigations by the ACMA 60
27.......... ACMA may investigate matters........................................................ 60
28.......... Conduct of investigations.................................................................. 60
29.......... Protection from civil proceedings...................................................... 60
Division 4—Action to be taken in relation to a complaint about prohibited content hosted outside Australia 61
40.......... Action to be taken in relation to a complaint about prohibited content hosted outside Australia 61
41.......... Deferral of action in order to avoid prejudicing a criminal investigation.. 63
42.......... Withdrawal of notification of content—reclassification of internet content 63
43.......... Withdrawal of notification of content—reclassification of internet content that consists of a film or a computer game.......................................................................................................... 64
44.......... Revocation of standard access‑prevention notice—reclassification of internet content 65
45.......... Revocation of standard access‑prevention notice—reclassification of internet content that consists of a film or a computer game.................................................................................................. 66
46.......... Anti‑avoidance—notified internet content......................................... 66
47.......... Anti‑avoidance—special access‑prevention notice............................ 67
48.......... Compliance with access‑prevention notices...................................... 68
49.......... Notification of internet content.......................................................... 69
50.......... Application of notifications under this Division................................ 69
51.......... ACMA may be taken to have issued access‑prevention notices........ 69
Part 5—Industry codes and industry standards 71
Division 1—Simplified outline 71
52.......... Simplified outline.............................................................................. 71
Division 2—Interpretation 72
53.......... Industry codes................................................................................... 72
54.......... Industry standards............................................................................. 72
55.......... Internet activity.................................................................................. 72
56.......... Section of the internet industry.......................................................... 72
57.......... Participants in a section of the internet industry................................ 72
58.......... Designated body............................................................................... 72
Division 3—General principles relating to industry codes and industry standards 73
59.......... Statement of regulatory policy........................................................... 73
60.......... Matters that must be dealt with by industry codes and industry standards 73
61.......... Industry codes and industry standards not to deal with certain matters 77
Division 4—Industry codes 78
62.......... Registration of industry codes........................................................... 78
63.......... ACMA may request codes................................................................ 80
64.......... Publication of notice where no body or association represents a section of the internet industry 81
65.......... Replacement of industry codes.......................................................... 81
66.......... Compliance with industry codes....................................................... 81
67.......... Formal warnings—breach of industry codes.................................... 82
Division 5—Industry standards 83
68.......... ACMA may determine an industry standard if a request for an industry code is not complied with 83
69.......... ACMA may determine industry standard where no industry body or association formed 84
70.......... ACMA may determine industry standards—total failure of industry codes 85
71.......... ACMA may determine industry standards—partial failure of industry codes 86
72.......... Compliance with industry standards................................................. 88
73.......... Formal warnings—breach of industry standards.............................. 88
74.......... Variation of industry standards......................................................... 88
75.......... Revocation of industry standards...................................................... 88
77.......... Consultation with designated body................................................... 89
Division 6—Register of industry codes and industry standards 90
78.......... ACMA to maintain Register of industry codes and industry standards 90
Part 6—Online provider rules 91
79.......... Online provider rules........................................................................ 91
80.......... Online provider determinations......................................................... 91
81.......... Exemptions from online provider determinations.............................. 92
82.......... Compliance with online provider rules.............................................. 92
83.......... Remedial directions—breach of online provider rules....................... 93
84.......... Formal warnings—breach of online provider rules........................... 94
85.......... Federal Court may order a person to cease supplying internet carriage services 94
Part 7—Offences 95
86.......... Continuing offences.......................................................................... 95
87.......... Conduct by directors, employees and agents..................................... 95
Part 8—Protection from civil and criminal proceedings 98
88.......... Protection from civil proceedings—internet service providers.......... 98
Part 9—Operation of State and Territory laws etc. 99
90.......... Concurrent operation of State and Territory laws.............................. 99
91.......... Liability of internet content hosts and internet service providers under State and Territory laws etc. 99
Part 10—Review of decisions 101
92.......... Review by the AAT........................................................................ 101
93.......... Notification of decisions to include notification of reasons and appeal rights 101
Part 11—Miscellaneous 103
94.......... Additional ACMA functions.......................................................... 103
96.......... Schedule not to affect performance of State or Territory functions. 103
Schedule 6—Datacasting services 104
Part 1—Introduction 104
1............ Simplified outline............................................................................ 104
2............ Definitions...................................................................................... 105
2A......... Designated datacasting service........................................................ 108
3............ Educational programs...................................................................... 109
4............ Information‑only programs............................................................. 109
5............ Foreign‑language news or current affairs programs........................ 112
6............ Datacasting content is taken not to be a television program or a radio program etc. 112
Part 2—Datacasting licences 113
7............ Allocation of datacasting licence..................................................... 113
8............ When datacasting licence must not be allocated............................... 113
9............ Unsuitable applicant........................................................................ 113
10.......... Transfer of datacasting licences....................................................... 114
11.......... Surrender of datacasting licences.................................................... 115
12.......... ACMA to maintain Register of datacasting licences that are not restricted datacasting licences 115
12A....... ACMA to maintain Register of restricted datacasting licences........ 115
Part 3—Conditions of datacasting licences 116
Division 1—Genre conditions 116
13.......... Category A television programs...................................................... 116
14.......... Condition relating to category A television programs..................... 117
15.......... Category B television programs...................................................... 118
16.......... Condition relating to category B television programs...................... 119
17.......... Genre conditions do not apply to Parliamentary proceedings etc.... 121
18.......... Genre conditions do not apply to matter that consists of no more than text or still visual images etc. 121
18A....... Genre conditions do not apply to advertising or sponsorship material 122
19.......... Genre conditions do not apply to interactive computer games......... 122
20.......... Genre conditions do not apply to internet carriage services or ordinary email 122
20AA.... Genre conditions do not apply to certain content copied from the internet 123
Division 2—Audio content condition 124
21.......... Audio content condition.................................................................. 124
22.......... Audio content condition does not apply to Parliamentary proceedings etc. 125
23.......... Audio content condition does not apply to matter that consists of no more than text or still visual images etc. 126
23A....... Audio content condition does not apply to advertising or sponsorship material 126
Division 2A—Genre conditions: anti‑avoidance 127
23B....... Anti‑avoidance—declared internet carriage services....................... 127
Division 3—Other conditions 128
24.......... General conditions.......................................................................... 128
24A....... Special conditions for restricted datacasting licences....................... 130
25.......... Suitability condition........................................................................ 130
26.......... Additional conditions imposed by the ACMA................................ 131
27.......... Restricted access system................................................................. 133
Division 4—Exemption orders for content copied from the internet 134
27A....... Exemption orders in relation to content copied from the internet..... 134
Part 4—Codes of practice 135
28.......... Development of codes of practice................................................... 135
30.......... ACMA to maintain Register of codes of practice............................ 138
31.......... ACMA may determine standards where codes of practice fail or where no code of practice developed 139
32.......... Consultation on standards............................................................... 139
33.......... Notification of determination or variation or revocation of standards 139
34.......... Limitation of ACMA’s power in relation to standards.................... 140
35.......... This Part does not apply to internet carriage services or ordinary email 140
35A....... This Part does not apply to the ABC or SBS.................................. 140
Part 5—Complaints to the ACMA about datacasting services 141
36.......... Complaints about offences or breach of licence conditions............. 141
37.......... Complaints under codes of practice................................................. 141
38.......... Investigation of complaints by the ACMA..................................... 142
Part 6—Control of datacasting transmitter licences 143
41.......... Datacasting transmitter licences not to be controlled by ABC or SBS 143
Part 7—Nominated datacaster declarations 144
42.......... Object of this Part........................................................................... 144
43.......... Datacasting transmitter licence........................................................ 144
44.......... Applications for nominated datacaster declarations......................... 144
45.......... Making a nominated datacaster declaration..................................... 145
46.......... Effect of nominated datacaster declaration....................................... 145
47.......... Revocation of nominated datacaster declaration.............................. 146
48.......... Register of nominated datacaster declarations................................. 147
Part 8—Remedies for breaches of licensing provisions 149
Division 1—Providing a designated datacasting service without a licence 149
49.......... Prohibition on providing a designated datacasting service without a licence 149
50.......... Remedial directions—unlicensed datacasting services.................... 149
51.......... Exemption for broadcasting licensees etc........................................ 151
51A....... Exemption for designated teletext services...................................... 151
Division 2—Breaches of licence conditions 152
52.......... Offence for breach of conditions..................................................... 152
52A....... Civil penalty provision relating to breach of conditions of datacasting licences 152
53.......... Remedial directions—breach of conditions..................................... 153
54.......... Suspension and cancellation............................................................ 154
55.......... Injunctions...................................................................................... 155
56.......... Federal Court’s powers relating to injunctions................................ 156
57.......... Stay of proceedings relating to additional licence conditions, remedial directions and suspension/cancellation decisions........................................................................................................ 158
Part 9—Review of decisions 160
58.......... Review by the Administrative Appeals Tribunal............................. 160
59.......... Notification of decisions to include notification of reasons and appeal rights 161
Schedule 7—Content services 162
Part 1—Introduction 162
1............ Simplified outline............................................................................ 162
2............ Definitions...................................................................................... 164
3............ Australian connection...................................................................... 174
4............ Hosting service............................................................................... 175
5............ Content service provider................................................................. 175
6............ When content is provided by a content service................................ 176
7............ When content service is provided to the public etc.......................... 176
8............ Links to content............................................................................... 176
9............ Services supplied by way of a voice call or video call..................... 176
9A......... Ancillary subscription television content service............................. 177
10.......... Classification of live content etc...................................................... 178
11.......... Eligible electronic publication.......................................................... 179
12.......... Re‑transmitted broadcasting services.............................................. 179
13.......... Re‑transmitted datacasting services................................................. 180
14.......... Restricted access system................................................................. 180
15.......... R 18+ content and MA 15+ content................................................ 181
16.......... Content that consists of a film......................................................... 182
17.......... Extended meaning of use................................................................ 182
18.......... Trained content assessor................................................................. 182
19.......... Extra‑territorial application.............................................................. 183
Part 2—Classification of content 184
Division 1—Prohibited content and potential prohibited content 184
20.......... Prohibited content........................................................................... 184
21.......... Potential prohibited content............................................................. 185
Division 2—Classification of content 187
22.......... Applications for classification of content........................................ 187
23.......... Classification of content.................................................................. 188
24.......... Classification of content that consists of a film, a computer game or an eligible electronic publication 188
25.......... Classification of content that does not consist of a film, a computer game or an eligible electronic publication 189
26.......... Deemed classification of content classified under Schedule 5......... 190
27.......... Fees................................................................................................. 190
Division 3—Reclassification 192
28.......... Reclassification of content............................................................... 192
29.......... Notice of intention to reclassify content.......................................... 192
Division 4—Review of classification decisions 194
Subdivision A—Review of classification of content 194
30.......... Persons who may apply for review................................................. 194
31.......... Applications for review................................................................... 195
32.......... Classification Review Board may refuse to deal with review applications that are frivolous etc. 196
33.......... Review............................................................................................ 196
Subdivision B—Review of content that consists of a film or a computer game 197
34.......... Review of classification of content that consists of a film or a computer game 197
Subdivision C—Review of content that consists of an eligible electronic publication 197
35.......... Review of classification of content that consists of an eligible electronic publication 197
Division 5—Miscellaneous 199
36.......... Decisions of the Classification Board etc........................................ 199
Part 3—Complaints to, and investigations by, the ACMA 200
Division 1—Making of complaints to the ACMA 200
37.......... Complaints about prohibited content or potential prohibited content 200
38.......... Complaints relating to breach of a designated content/hosting service provider rule etc. 202
39.......... Form of complaint........................................................................... 202
40.......... Recordings of live content............................................................... 203
41.......... Residency etc. of complainant......................................................... 203
42.......... Escalation of complaints made under industry codes etc................. 204
Division 2—Investigations by the ACMA 205
44.......... ACMA may investigate matters...................................................... 205
45.......... Conduct of investigations................................................................ 205
46.......... Protection from civil proceedings.................................................... 206
Division 3—Action to be taken in relation to hosting services 207
47.......... Action to be taken in relation to hosting services............................ 207
48.......... Revocation of interim take‑down notices—voluntary withdrawal of content 211
49.......... Revocation of final take‑down notices—reclassification of content 212
50.......... Revocation of final take‑down notices—reclassification of content that consists of a film or a computer game 212
51.......... Revocation of final take‑down notices—reclassification of a corresponding print publication 213
52.......... Anti‑avoidance—special take‑down notices.................................... 213
53.......... Compliance with rules relating to prohibited content etc................. 215
54.......... Identification of content................................................................... 216
55.......... Application of notices under this Division...................................... 216
Division 4—Action to be taken in relation to live content services 217
56.......... Action to be taken in relation to live content services...................... 217
57.......... Undertaking—alternative to service‑cessation notice...................... 220
58.......... Revocation of service‑cessation notices—undertaking.................... 221
59.......... Revocation of final service‑cessation notices—reclassification of content 221
59A....... Anti‑avoidance—special service‑cessation notices.......................... 222
60.......... Compliance with rules relating to prohibited content etc................. 223
61.......... Identification of content................................................................... 224
Division 5—Action to be taken in relation to links services 225
62.......... Action to be taken in relation to links services................................ 225
63.......... Revocation of interim link‑deletion notices—voluntary deletion of link 229
64.......... Revocation of final link‑deletion notices—reclassification of content 230
65.......... Revocation of final link‑deletion notices—reclassification of content that consists of a film or a computer game 230
66.......... Revocation of final link‑deletion notices—reclassification of a corresponding print publication 231
67.......... Anti‑avoidance—special link‑deletion notices................................. 231
68.......... Compliance with rules relating to prohibited content etc................. 233
Division 6—Law enforcement agencies 235
69.......... Referral of matters to law enforcement agencies............................. 235
70.......... Deferral of action in order to avoid prejudicing a criminal investigation—hosting services 236
71.......... Deferral of action in order to avoid prejudicing a criminal investigation—live content services 236
72.......... Deferral of action in order to avoid prejudicing a criminal investigation—links services 237
Part 4—Industry codes and industry standards 238
Division 1—Simplified outline 238
73.......... Simplified outline............................................................................ 238
Division 2—Interpretation 239
74.......... Industry codes................................................................................. 239
75.......... Industry standards........................................................................... 239
76.......... Content activity............................................................................... 239
77.......... Sections of the content industry...................................................... 239
78.......... Participants in a section of the content industry............................... 240
79.......... Designated body............................................................................. 240
Division 3—General principles relating to industry codes and industry standards 241
80.......... Statement of regulatory policy......................................................... 241
81.......... Matters that must be dealt with by industry codes and industry standards—commercial content providers 241
82.......... Examples of matters that may be dealt with by industry codes and industry standards 243
83.......... Escalation of complaints.................................................................. 245
84.......... Collection of personal information.................................................. 245
Division 4—Industry codes 247
85.......... Registration of industry codes......................................................... 247
86.......... ACMA may request codes.............................................................. 248
87.......... Publication of notice where no body or association represents a section of the content industry 249
88.......... Replacement of industry codes........................................................ 250
89.......... Compliance with industry codes..................................................... 250
90.......... Formal warnings—breach of industry codes.................................. 250
Division 5—Industry standards 251
91.......... ACMA may determine an industry standard if a request for an industry code is not complied with 251
92.......... ACMA may determine industry standard where no industry body or association formed 252
93.......... ACMA may determine industry standards—total failure of industry codes 253
94.......... ACMA may determine industry standards—partial failure of industry codes 254
95.......... Compliance with industry standards............................................... 256
96.......... Formal warnings—breach of industry standards............................ 256
97.......... Variation of industry standards....................................................... 256
98.......... Revocation of industry standards.................................................... 256
99.......... Public consultation on industry standards....................................... 257
100........ Consultation with designated body................................................. 257
Division 6—Register of industry codes and industry standards 258
101........ ACMA to maintain Register of industry codes and industry standards 258
Division 7—Miscellaneous 259
102........ Industry codes may provide for matters by reference to other instruments 259
103........ Industry standards may provide for matters by reference to other instruments 259
Part 5—Designated content/hosting service provider determinations 260
104........ Designated content/hosting service provider determinations........... 260
105........ Exemptions from designated content/hosting service provider determinations 261
Part 6—Enforcement 262
106........ Compliance with designated content/hosting service provider rules—offence 262
107........ Compliance with designated content/hosting service provider rules—civil penalty provision 262
108........ Remedial directions—breach of designated content/hosting service provider rules 263
109........ Formal warnings—breach of designated content/hosting service provider rules 264
110........ Federal Court may order a person to cease providing designated content/hosting services 264
Part 7—Protection from civil and criminal proceedings 265
111........ Protection from civil proceedings—service providers..................... 265
112........ Protection from criminal proceedings—ACMA, Classification Board and Classification Review Board 265
Part 8—Review of decisions 267
113........ Review by the Administrative Appeals Tribunal............................. 267
Part 9—Miscellaneous 270
114........ Additional ACMA functions.......................................................... 270
115........ Recordings of content etc................................................................ 270
116........ Samples of content to be submitted for classification...................... 271
117........ Service of summons, process or notice on corporations incorporated outside Australia 271
117A..... Meaning of broadcasting service.................................................... 272
119........ This Schedule does not limit Schedule 5......................................... 272
120........ This Schedule does not limit the Telecommunications Act 1997..... 272
121........ Implied freedom of political communication................................... 272
122........ Concurrent operation of State and Territory laws............................ 273
123........ Schedule not to affect performance of State or Territory functions. 273
Endnotes 274
Endnote 1—About the endnotes 274
Endnote 2—Abbreviation key 275
Endnote 3—Legislation history 276
Endnote 4—Amendment history 291
Endnote 5—Misdescribed amendments 354
Broadcasting and Other Legislation Amendment (Deregulation) Act 2015 (No. 22, 2015) 354
Schedule 4—Digital television broadcasting
Note: See section 216A.
Part 1—Introduction
1 Simplified outline of this Schedule
National broadcasters who operate a transmitter are subject to restrictions regarding the services that may be transmitted in digital mode using the transmitter.
Commercial television licensees and national broadcasters who provide SDTV or HDTV multi‑channelled television broadcasting services are subject to restrictions regarding the televising of anti‑siphoning events and parts of anti‑siphoning events.
Owners and operators of broadcasting transmission towers must give digital broadcasters and datacasters access to the towers for the purposes of installing or maintaining digital transmitters. Applications to the AAT for review of a decision regarding access may be made by the person seeking access, or by the owner or operator of the facility to which access is sought.
An ACMA determination determines when charge imposed by the Datacasting Charge (Imposition Act) 1998 is due and payable. The ACMA may also impose a late payment penalty.
2 Definitions
In this Schedule, unless the contrary intention appears:
AAT means the Administrative Appeals Tribunal.
broadcasting transmission tower means:
(a) a tower; or
(b) a pole; or
(c) a mast; or
(d) a similar structure;
used to supply:
(e) a broadcasting service by means of radiocommunications using the broadcasting services bands; or
(f) a datacasting service provided under, and in accordance with the conditions of, a datacasting licence.
coverage area means:
(a) a metropolitan coverage area; or
(b) a regional coverage area.
HDTV digital mode has the meaning given by clause 4A.
HDTV multi‑channelled commercial television broadcasting service has the meaning given by clause 5B.
HDTV multi‑channelled national television broadcasting service has the meaning given by clause 5D.
licence area means a licence area for a commercial television broadcasting licence.
metropolitan coverage area means an area that corresponds to a metropolitan licence area.
metropolitan licence area means a licence area in which is situated the General Post Office of the capital city of:
(a) New South Wales; or
(b) Victoria; or
(c) Queensland; or
(d) Western Australia; or
(e) South Australia;
but does not include the licence area of a commercial television broadcasting licence allocated under section 38c.
national broadcasting service does not include a broadcasting service provided under the Parliamentary Proceedings Broadcasting Act 1946.
national television broadcasting service means a national broadcasting service that provides television programs.
news or current affairs program means any of the following:
(a) a news bulletin;
(b) a sports news bulletin;
(c) a program (whether presenter‑based or not) whose sole or dominant purpose is to provide analysis, commentary or discussion principally designed to inform the general community about social, economic or political issues of current relevance to the general community.
primary commercial television broadcasting service, in relation to a commercial television broadcasting licence, has the meaning given by clause 41G.
primary national television broadcasting service, in relation to a national broadcaster, has the meaning given by clause 41M.
primary satellite national television broadcasting service, in relation to a national broadcaster, has the meaning given by clause 41N.
radiocommunication has the same meaning as in the Radiocommunications Act 1992.
regional coverage area means an area that corresponds to a regional licence area.
regional licence area means a licence area that is not a metropolitan licence area, but does not include the licence area of a commercial television broadcasting licence allocated under section 38c.
remote coverage area means an area that corresponds to a remote licence area.
remote licence area has the meaning given by clause 5.
satellite delivery area means an area that corresponds to the licence area of a commercial television broadcasting licence allocated under section 38c.
SDTV digital mode has the meaning given by clause 4B.
SDTV multi‑channelled commercial television broadcasting service has the meaning given by clause 5A.
SDTV multi‑channelled national television broadcasting service has the meaning given by clause 5c.
television broadcasting service means:
(a) a commercial television broadcasting service; or
(b) a national television broadcasting service.
transmitter licence has the same meaning as in the Radiocommunications Act 1992.
4 Digital mode
For the purposes of this Schedule, a program or service is broadcast or transmitted in digital mode if the program or service is broadcast or transmitted using a digital modulation technique.
4A HDTV digital mode
For the purposes of this Schedule, a television program or a television broadcasting service is broadcast or transmitted in HDTV digital mode if the program or service is broadcast or transmitted in digital mode in a high definition format.
4B SDTV digital mode
For the purposes of this Schedule, a program or a television broadcasting service is broadcast or transmitted in SDTV digital mode if the program or service is broadcast or transmitted in digital mode in a standard definition format.
5 Remote licence area
(1) The ACMA may, by legislative instrument, determine that a specified licence area is a remote licence area for the purposes of this Schedule.
(1A) Subclause (1) does not apply to the licence area of a commercial television broadcasting licence allocated under section 38c.
(2) A determination under this clause has effect accordingly.
5A SDTV multi‑channelled commercial television broadcasting service
For the purposes of this Schedule, a commercial television broadcasting service is a SDTV multi‑channelled commercial television broadcasting service if:
(a) the service is provided by a commercial television broadcasting licensee; and
(b) the service is transmitted in SDTV digital mode:
(i) using multi‑channelling transmission capacity; or
(ii) with the use of a satellite; and
(c) the service is promoted as a service that is distinct from any other commercial television broadcasting service provided by the licensee.
5B HDTV multi‑channelled commercial television broadcasting service
For the purposes of this Schedule, a commercial television broadcasting service is a HDTV multi‑channelled commercial television broadcasting service if:
(a) the service is provided by a commercial television broadcasting licensee; and
(b) the service is transmitted in HDTV digital mode:
(i) using multi‑channelling transmission capacity; or
(ii) with the use of a satellite; and
(c) the service is promoted as a service that is distinct from any other commercial television broadcasting service provided by the licensee.
5C SDTV multi‑channelled national television broadcasting service
(1) For the purposes of this Schedule, a national television broadcasting service is a SDTV multi‑channelled national television broadcasting service if:
(a) the service is provided by:
(i) the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or
(ii) the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; and
(b) the service is transmitted in SDTV digital mode:
(i) using multi‑channelling transmission capacity; or
(ii) with the use of a satellite; and
(c) the service is promoted as a service that is distinct from any other national television broadcasting service provided by the Corporation concerned; and
(d) the Corporation concerned has given the Minister a written notice electing that this subclause apply to the service.
(4) Paragraph (1)(d) does not apply to a national television broadcasting service provided with the use of a satellite.
5D HDTV multi‑channelled national television broadcasting service
For the purposes of this Schedule, a national television broadcasting service is a HDTV multi‑channelled national television broadcasting service if:
(a) the service is provided by:
(i) the Australian Broadcasting Corporation in accordance with section 6 of the Australian Broadcasting Corporation Act 1983; or
(ii) the Special Broadcasting Service Corporation in accordance with section 6 of the Special Broadcasting Service Act 1991; and
(b) the service is transmitted in HDTV digital mode:
(i) using multi‑channelling transmission capacity; or
(ii) with the use of a satellite; and
(c) the service is promoted as a service that is distinct from any other national television broadcasting service provided by the Corporation concerned.
Part 3—ABC/SBS television
36 Digital transmitter not to be used to provide a subscription television broadcasting service etc.
If a national broadcaster holds a transmitter licence that authorises the operation of a transmitter for transmitting national television broadcasting services in digital mode, the national broadcaster must not operate, or permit the operation of, that transmitter to transmit in digital mode:
(a) a commercial broadcasting service that provides radio programs; or
(b) a subscription radio broadcasting service; or
(c) a subscription television broadcasting service; or
(d) a subscription radio narrowcasting service; or
(e) a subscription television narrowcasting service; or
(f) an open narrowcasting radio service; or
(g) an open narrowcasting television service.
Part 4A—Restrictions on televising anti‑siphoning events
Division 1—Commercial television broadcasting services
41E SDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events
Scope
(1) This clause applies to a commercial television broadcasting licensee if the licensee provides:
(a) a SDTV multi‑channelled commercial television broadcasting service that is the licensee’s primary commercial television broadcasting service in the licence area of the licence; and
(b) one or more other SDTV multi‑channelled commercial television broadcasting services (the secondary commercial television broadcasting services) in that licence area.
Televising the whole of an anti‑siphoning event
(2) The licensee must not televise on a secondary commercial television broadcasting service in the licence area the whole of an anti‑siphoning event unless:
(a) the licensee has previously televised in the licence area the whole of the event on the licensee’s primary commercial television broadcasting service; or
(b) the licensee will televise simultaneously in the licence area the whole of the event on both:
(i) the licensee’s primary commercial television broadcasting service; and
(ii) the secondary commercial television broadcasting service.
Televising a part of an anti‑siphoning event
(3) The licensee must not televise on a secondary commercial television broadcasting service in the licence area a part of an anti‑siphoning event unless:
(a) the licensee has previously televised in the licence area the part of the event on the licensee’s primary commercial television broadcasting service; or
(b) the licensee will televise simultaneously in the licence area the part of the event on both:
(i) the licensee’s primary commercial television broadcasting service; and
(ii) the secondary commercial television broadcasting service; or
(c) the licensee televises the part of the event in a news or current affairs program broadcast on the secondary commercial television broadcasting service.
Note 1: For primary commercial television broadcasting service, see subclause 41G(2).
Note 2: For anti‑siphoning event, see subsection 6(1).
Licences allocated under section 38C
(4) This clause does not apply in relation to a licence allocated under section 38c.
41F HDTV multi‑channelled commercial television broadcasting service—restrictions on televising anti‑siphoning events
Scope
(1) This clause applies to a commercial television broadcasting licensee.
Televising the whole of an anti‑siphoning event
(2) The licensee must not televise on a HDTV multi‑channelled commercial television broadcasting service in the licence area of the licence, the whole of an anti‑siphoning event unless:
(a) the licensee has previously televised in the licence area the whole of the event on the licensee’s primary commercial television broadcasting service; or
(b) the licensee will televise simultaneously in the licence area the whole of the event on both:
(i) the licensee’s primary commercial television broadcasting service; and
(ii) the HDTV multi‑channelled commercial television broadcasting service.
Televising a part of an anti‑siphoning event
(3) The licensee must not televise on a HDTV multi‑channelled commercial television broadcasting service in the licence area of the licence, a part of an anti‑siphoning event unless:
(a) the licensee has previously televised in the licence area the part of the event on the licensee’s primary commercial television broadcasting service; or
(b) the licensee will televise simultaneously in the licence area the part of the event on both:
(i) the licensee’s primary commercial television broadcasting service; and
(ii) the HDTV multi‑channelled commercial television broadcasting service; or
(c) the licensee televises the part of the event in a news or current affairs program broadcast on the HDTV multi‑channelled commercial television broadcasting service.
Note 1: For primary commercial television broadcasting service, see subclause 41G(2).
Note 2: For anti‑siphoning event, see subsection 6(1).
Licences allocated under section 38C
(4) This clause does not apply in relation to a licence allocated under section 38c.
41FA SDTV multi‑channelled commercial television broadcasting service provided under a section 38C licence—restrictions on televising anti‑siphoning events
Scope
(1) This clause applies to a commercial television broadcasting licensee if:
(a) the licence was allocated under section 38C; and
(b) the licensee provides:
(i) a SDTV multi‑channelled commercial television broadcasting service that is one of the licensee’s primary commercial television broadcasting services in the licence area; and
(ii) one or more SDTV multi‑channelled commercial television broadcasting services that are not the licensee’s primary commercial television broadcasting services (the secondary commercial television broadcasting services) in the licence area.
Televising the whole of an anti‑siphoning event
(2) The licensee must not televise on a secondary commercial television broadcasting service in the licence area the whole of an anti‑siphoning event unless:
(a) the licensee has previously televised in the licence area the whole of the event on one or more of the licensee’s primary commercial television broadcasting services; or
(b) the licensee will televise simultaneously in the licence area the whole of the event on:
(i) one or more of the licensee’s primary commercial television broadcasting services; and
(ii) the secondary commercial television broadcasting service.
Televising a part of an anti‑siphoning event
(3) The licensee must not televise on a secondary commercial television broadcasting service in the licence area a part of an anti‑siphoning event unless:
(a) the licensee has previously televised in the licence area the part of the event on one or more of the licensee’s primary commercial television broadcasting services; or
(b) the licensee will televise simultaneously in the licence area the part of the event on:
(i) one or more of the licensee’s primary commercial television broadcasting service; and
(ii) the secondary commercial television broadcasting service; or
(c) the licensee televises the part of the event in a news or current affairs program broadcast on the secondary commercial television broadcasting service.
Note 1: For primary commercial television broadcasting service, see subclause 41G(3).
Note 2: For anti‑siphoning event, see subsection 6(1).
41FB HDTV multi‑channelled commercial television broadcasting service provided under a section 38C licence—restrictions on televising anti‑siphoning events
Scope
(1) This clause applies to a commercial television broadcasting licensee if the licence was allocated under section 38c.
Televising the whole of an anti‑siphoning event
(2) The licensee must not televise on a HDTV multi‑channelled commercial television broadcasting service in the licence area the whole of an anti‑siphoning event unless:
(a) the licensee has previously televised in the licence area the whole of the event on one or more of the licensee’s primary commercial television broadcasting services; or
(b) the licensee will televise simultaneously in the licence area the whole of the event on:
(i) one or more of the licensee’s primary commercial television broadcasting services; and
(ii) the HDTV multi‑channelled commercial television broadcasting service.
Televising a part of an anti‑siphoning event
(3) The licensee must not televise on a HDTV multi‑channelled commercial television broadcasting service in the licence area a part of an anti‑siphoning event unless:
(a) the licensee has previously televised in the licence area the part of the event on one or more of the licensee’s primary commercial television broadcasting services; or
(b) the licensee will televise simultaneously in the licence area the part of the event on:
(i) one or more of the licensee’s primary commercial television broadcasting services; and
(ii) the HDTV multi‑channelled commercial television broadcasting service; or
(c) the licensee televises the part of the event in a news or current affairs program broadcast on the HDTV multi‑channelled commercial television broadcasting service.
Note 1: For primary commercial television broadcasting service, see subclause 41G(3).
Note 2: For anti‑siphoning event, see subsection 6(1).
41G Primary commercial television broadcasting service
(2) The ACMA may, by legislative instrument, declare that a specified SDTV multi‑channelled commercial television broadcasting service provided by a commercial television broadcasting licensee for the licence area of the licence is the licensee’s primary commercial television broadcasting service in the licence area.
(3) The ACMA must ensure that a declaration under subclause (2) is in force at all times after the licensee commences to provide a SDTV multi‑channelled commercial television broadcasting service in the licence area.
Service provided under a section 38C licence
(4) The ACMA may, by legislative instrument, declare that one or more specified SDTV multi‑channelled commercial television broadcasting services provided by a commercial television broadcasting licensee whose licence was allocated under section 38C are the licensee’s primary commercial television broadcasting services in the licence area.
(5) The number of services declared under subclause (4) in relation to a particular licensee must not exceed 3.
(6) The ACMA must ensure that a declaration under subclause (4) is in force at all times for the licence area concerned.
Division 2—National television broadcasting services
41K SDTV multi‑channelled national television broadcasting service—restrictions on televising anti‑siphoning events
Scope
(1) This clause applies to a national broadcaster if the national broadcaster provides:
(a) a SDTV multi‑channelled national television broadcasting service that is the broadcaster’s primary national television broadcasting service in a coverage area; and
(b) one or more other SDTV multi‑channelled national television broadcasting services (the secondary national television broadcasting services) in that coverage area.
Televising the whole of an anti‑siphoning event
(2) The national broadcaster must not televise on a secondary national television broadcasting service in the coverage area the whole of an anti‑siphoning event unless:
(a) the national broadcaster has previously televised in the coverage area the whole of the event on the broadcaster’s primary national television broadcasting service; or
(b) the national broadcaster will televise simultaneously in the coverage area the whole of the event on both:
(i) the broadcaster’s primary national television broadcasting service; and
(ii) the secondary national television broadcasting service.
Televising a part of an anti‑siphoning event
(3) The national broadcaster must not televise on a secondary national television broadcasting service in the coverage area a part of an anti‑siphoning event unless:
(a) the national broadcaster has previously televised in the coverage area the part of the event on the broadcaster’s primary national television broadcasting service; or
(b) the national broadcaster will televise simultaneously in the coverage area the part of the event on both:
(i) the broadcaster’s primary national television broadcasting service; and
(ii) the secondary national television broadcasting service; or
(c) the national broadcaster televises the part of the event in a news or current affairs program broadcast on the secondary national television broadcasting service.
Note 1: For primary national television broadcasting service, see clause 41M.
Note 2: For anti‑siphoning event, see subsection 6(1).
National television broadcasting services provided with the use of a satellite
(4) This clause does not apply in relation to national television broadcasting services provided with the use of a satellite.
41L HDTV multi‑channelled national television broadcasting service—restrictions on televising anti‑siphoning events
Scope
(1) This clause applies to a national broadcaster.
Televising the whole of an anti‑siphoning event
(2) The national broadcaster must not televise on a HDTV multi‑channelled national television broadcasting service in a coverage area the whole of an anti‑siphoning event unless:
(a) the national broadcaster has previously televised in the coverage area the whole of the event on the broadcaster’s primary national television broadcasting service; or
(b) the national broadcaster will televise simultaneously in the coverage area the whole of the event on both:
(i) the broadcaster’s primary national television broadcasting service; and
(ii) the HDTV multi‑channelled national television broadcasting service.
Televising a part of an anti‑siphoning event
(3) The national broadcaster must not televise on a HDTV multi‑channelled national television broadcasting service in a coverage area a part of an anti‑siphoning event unless:
(a) the national broadcaster has previously televised in the coverage area the part of the event on the broadcaster’s primary national television broadcasting service; or
(b) the national broadcaster will televise simultaneously in the coverage area the part of the event on both:
(i) the broadcaster’s primary national television broadcasting service; and
(ii) the HDTV multi‑channelled national television broadcasting service; or
(c) the national broadcaster televises the part of the event in a news or current affairs program broadcast on the HDTV multi‑channelled national television broadcasting service.
Note 1: For primary national television broadcasting service, see clause 41M.
Note 2: For anti‑siphoning event, see subsection 6(1).
National television broadcasting services provided with the use of a satellite
(4) This clause does not apply in relation to national television broadcasting services provided with the use of a satellite.
41LA SDTV multi‑channelled national television broadcasting service provided with the use of a satellite—restrictions on televising anti‑siphoning events
Scope
(1) This clause applies to a national broadcaster if the national broadcaster provides, with the use of a satellite:
(a) a SDTV multi‑channelled national television broadcasting service that is the broadcaster’s primary satellite national television broadcasting service in a satellite delivery area; and
(b) one or more other SDTV multi‑channelled national television broadcasting services (the secondary national television broadcasting services) in the satellite delivery area.
Televising the whole of an anti‑siphoning event
(2) The national broadcaster must not televise on a secondary national television broadcasting service in the satellite delivery area the whole of an anti‑siphoning event unless:
(a) the national broadcaster has previously televised in the satellite delivery area the whole of the event on the broadcaster’s primary satellite national television broadcasting service; or
(b) the national broadcaster will televise simultaneously in the satellite delivery area the whole of the event on both:
(i) the broadcaster’s primary satellite national television broadcasting service; and
(ii) the secondary national television broadcasting service.
Televising a part of an anti‑siphoning event
(3) The national broadcaster must not televise on a secondary national television broadcasting service in the satellite delivery area a part of an anti‑siphoning event unless:
(a) the national broadcaster has previously televised in the satellite delivery area the part of the event on the broadcaster’s primary satellite national television broadcasting service; or
(b) the national broadcaster will televise simultaneously in the satellite delivery area the part of the event on both:
(i) the broadcaster’s primary satellite national television broadcasting service; and
(ii) the secondary national television broadcasting service; or
(c) the national broadcaster televises the part of the event in a news or current affairs program broadcast on the secondary national television broadcasting service.
Note 1: For primary satellite national television broadcasting service, see clause 41N.
Note 2: For anti‑siphoning event, see subsection 6(1).
41LB HDTV multi‑channelled national television broadcasting service provided with the use of a satellite—restrictions on televising anti‑siphoning events
Scope
(1) This clause applies to a national broadcaster if the national broadcaster provides, with the use of a satellite, a HDTV multi‑channelled national television broadcasting service.
Televising the whole of an anti‑siphoning event
(2) The national broadcaster must not televise on the HDTV multi‑channelled national television broadcasting service in a satellite delivery area the whole of an anti‑siphoning event unless:
(a) the national broadcaster has previously televised in the satellite delivery area the whole of the event on the broadcaster’s primary satellite national television broadcasting service; or
(b) the national broadcaster will televise simultaneously in the satellite delivery area the whole of the event on both:
(i) the broadcaster’s primary satellite national television broadcasting service; and
(ii) the HDTV multi‑channelled national television broadcasting service.
Televising a part of an anti‑siphoning event
(3) The national broadcaster must not televise on the HDTV multi‑channelled national television broadcasting service in a satellite delivery area a part of an anti‑siphoning event unless:
(a) the national broadcaster has previously televised in the satellite delivery area the part of the event on the broadcaster’s primary satellite national television broadcasting service; or
(b) the national broadcaster will televise simultaneously in the satellite delivery area the part of the event on both:
(i) the broadcaster’s primary satellite national television broadcasting service; and
(ii) the HDTV multi‑channelled national television broadcasting service; or
(c) the national broadcaster televises the part of the event in a news or current affairs program broadcast on the HDTV multi‑channelled national television broadcasting service.
Note 1: For primary satellite national television broadcasting service, see clause 41N.
Note 2: For anti‑siphoning event, see subsection 6(1).
41M Primary national television broadcasting service
(1) A national broadcaster must, by written notice given to the Minister, declare that a specified SDTV multi‑channelled national television broadcasting service provided by the national broadcaster in a specified coverage area is the broadcaster’s primary national television broadcasting service in the coverage area.
(2) The national broadcaster must ensure that a declaration under subclause (1) is in force at all times, for the coverage area concerned.
41N Primary satellite national television broadcasting service
Primary national television broadcasting service
(1) A national broadcaster must, by written notice given to the Minister, declare that a specified SDTV multi‑channelled national television broadcasting service provided by the national broadcaster, with the use of a satellite, in a specified satellite delivery area is the broadcaster’s primary satellite national television broadcasting service in the satellite delivery area.
(2) The national broadcaster must ensure that a declaration under subclause (1):
(a) comes into force as soon as practicable after the national broadcaster commences to provide a SDTV multi‑channelled national television broadcasting service, with the use of a satellite, in the satellite delivery area; and
(b) is in force at all times after that commencement.
Part 5—Transmitter access regime
42 Simplified outline
The following is a simplified outline of this Part:
• The owner or operator of a broadcasting transmission tower or a designated associated facility must provide:
(a) the holder of a commercial television broadcasting licence; or
(b) a national broadcaster;
with access to the tower or facility.
• The owner or operator of a broadcasting transmission tower or a designated associated facility must provide a datacaster with access to the tower or facility.
• The owner or operator of a broadcasting transmission tower must provide:
(a) the holder of a commercial television broadcasting licence; or
(b) a national broadcaster;
with access to the site of the tower.
• The owner or operator of a broadcasting transmission tower must provide a datacaster with access to the site of the tower.
43 Definitions
In this Part:
ACCC means the Australian Competition and Consumer Commission.
commercial television broadcasting licence does not include a commercial television broadcasting licence allocated under section 38c.
datacaster means a person who holds a datacasting transmitter licence.
datacasting transmitter licence does not include an authorisation under section 114 of the Radiocommunications Act 1992.
designated associated facility has the meaning given by clause 43A.
facility includes apparatus, equipment, a structure, a line or an electricity cable or wire.
site means:
(a) land; or
(b) a building on land; or
(c) a structure on land.
43A Designated associated facilities
For the purposes of this Part, a designated associated facility means any of the following facilities:
(a) an antenna;
(b) a combiner;
(c) a feeder system;
(d) a facility of a kind specified in the regulations;
where:
(e) the facility is, or is to be, associated with a transmitter; and
(f) the facility is used, or capable of being used, in connection with:
(i) the transmission of a television broadcasting service in digital mode; or
(ii) the provision of datacasting services in digital mode.
44 Extended meaning of access
(1) For the purposes of this Part, giving access to a tower includes replacing the tower with another tower located on the same site and giving access to the replacement tower.
(2) For the purposes of this Part, giving access to a site on which is situated a tower includes replacing the tower with another tower located on the site.
(3) For the purposes of this Part, giving access to a designated associated facility includes:
(a) replacing the facility with another facility located on the same site and giving access to the replacement facility; or
(b) giving access to a service provided by means of the designated associated facility.
45 Access to broadcasting transmission towers
Television broadcasting services in digital mode
(1) The owner or operator of a broadcasting transmission tower must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also the access seeker), give the access seeker access to the tower.
(2) The owner or operator of the broadcasting transmission tower is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service or services in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Datacasting services in digital mode
(3) The owner or operator of a broadcasting transmission tower must, if requested to do so by a datacaster (the access seeker), give the access seeker access to the tower.
(4) The owner or operator of the broadcasting transmission tower is not required to comply with subclause (3) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, in connection with the provision of datacasting services in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(5) The owner or operator of a broadcasting transmission tower is not required to comply with subclause (1) or (3) if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subclause (1) or (3), as the case may be, in relation to that tower is not technically feasible.
(6) In determining whether compliance with subclause (1) or (3) in relation to a tower is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the tower; and
(ii) making alterations to the tower; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(7) If the ACMA receives a request to make a decision about the issue of a certificate under subclause (5), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
45A Access to designated associated facilities
(1) This clause applies to a designated associated facility if the facility is situated on, at, in or under:
(a) a broadcasting transmission tower; or
(b) the site on which a broadcasting transmission tower is situated.
Television broadcasting services in digital mode
(2) The owner or operator of the designated associated facility must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also called the access seeker), give the access seeker access to the facility.
(3) The owner or operator of the designated associated facility is not required to comply with subclause (2) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to use the facility, or a service provided by means of the facility, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service or services in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Datacasting services in digital mode
(4) The owner or operator of the designated associated facility must, if requested to do so by a datacaster (the access seeker), give the access seeker access to the facility.
(5) The owner or operator of the designated associated facility is not required to comply with subclause (4) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to use the facility, or a service provided by means of the facility, wholly or principally in connection with the provision of datacasting services in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(6) The owner or operator of a designated associated facility is not required to comply with subclause (2) or (4) if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subclause (2) or (4), as the case may be, in relation to that facility is not technically feasible.
(7) In determining whether compliance with subclause (2) or (4) in relation to a facility is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the site; and
(ii) making alterations to a facility situated on the site; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(8) If the ACMA receives a request to make a decision about the issue of a certificate under subclause (6), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
Exemptions
(9) The regulations may provide for exemptions from subclauses (2) and (4).
(10) Regulations made for the purposes of subclause (9) may make provision with respect to a matter by conferring on the ACCC a power to make a decision of an administrative character.
46 Access to sites of broadcasting transmission towers
Television broadcasting services in digital mode
(1) The owner or operator of a broadcasting transmission tower must, if requested to do so by the holder of a commercial television broadcasting licence (the access seeker), or a national broadcaster (also the access seeker), give the access seeker access to a site if:
(a) the tower is situated on the site; and
(b) either:
(i) the site is owned, occupied or controlled by the owner or operator of the tower; or
(ii) the owner or operator of the tower has a right (either conditional or unconditional) to use the site.
(2) The owner or operator of the broadcasting transmission tower is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, wholly or principally in connection with the transmission of the access seeker’s television broadcasting service or services in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Datacasting services in digital mode
(3) The owner or operator of a broadcasting transmission tower must, if requested to do so by a datacaster (the access seeker), give the access seeker access to a site if the tower is situated on the site.
(4) The owner or operator of the broadcasting transmission tower is not required to comply with subclause (3) unless:
(a) the access is provided for the sole purpose of enabling the access seeker to install or maintain a transmitter and/or associated facilities used, or for use, in connection with the provision of datacasting services in digital mode; and
(b) the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.
Compliance not technically feasible
(5) The owner or operator of a broadcasting transmission tower is not required to comply with subclause (1) or (3) if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subclause (1) or (3), as the case may be, in relation to that tower is not technically feasible.
(6) In determining whether compliance with subclause (1) or (3) in relation to a site is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the site; and
(ii) making alterations to a facility situated on the site; and
(d) such other matters (if any) as the ACMA considers relevant.
Issue of certificate
(7) If the ACMA receives a request to make a decision about the issue of a certificate under subclause (5), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
47 Terms and conditions of access
Access to towers
(1) The owner or operator of a broadcasting transmission tower must comply with subclause 45(1) or (3) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that subclause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
Access to designated associated facilities
(1A) The owner or operator of a designated associated facility must comply with subclause 45A(2) or (4) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that subclause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
Access to sites
(2) The owner or operator of a broadcasting transmission tower must comply with subclause 46(1) or (3) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the owner or operator;
(ii) the access seeker (within the meaning of that subclause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
Conduct of arbitration
(3) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.
(4) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, the ACCC may be constituted by a single member, or a specified number of members, of the ACCc. For each such arbitration, that member or those members are to be nominated in writing by the Chair of the ACCc.
(5) Subclause (4) does not, by implication, limit subclause (3).
48 Code relating to access
(1) The ACCC may, by legislative instrument, make a Code setting out conditions that are to be complied with in relation to the provision of access under this Part.
(2) Before making an instrument under subclause (1), the ACCC must consult:
(a) commercial television broadcasting licensees; and
(b) national broadcasters; and
(c) owners and operators of broadcasting transmission towers.
(3) An access seeker must comply with the Code.
(4) The owner or operator of a broadcasting transmission tower must comply with the Code, to the extent to which the Code relates to the provision of access under clause 45 or 46.
(4A) The owner or operator of a designated associated facility must comply with the Code, to the extent to which the Code relates to the provision of access under clause 45A.
49 Arbitration—acquisition of property
(1) This clause applies to a provision of this Part that authorises the conduct of an arbitration (whether by the ACCC or another person).
(2) The provision has no effect to the extent (if any) to which it purports to authorise the acquisition of property if that acquisition:
(a) is otherwise than on just terms; and
(b) would be invalid because of paragraph 51(xxxi) of the Constitution.
(3) In this clause:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
50 Relationship between this Part and the National Transmission Network Sale Act 1998
Part 3 of the National Transmission Network Sale Act 1998 does not apply in relation to an access seeker seeking access to a broadcasting transmission tower or a site to the extent to which this Part applies in relation to the access seeker seeking access to that tower or site.
Part 6—Collection of datacasting charge
51 Collection of datacasting charge
Definitions
(1) In this clause:
charge means charge imposed by the Datacasting Charge (Imposition) Act 1998.
late payment penalty means an amount that is payable by way of penalty in accordance with a determination under subclause (3).
When charge due and payable
(2) Charge is due and payable at the time ascertained in accordance with a determination under subclause (2A).
(2A) The ACMA may, by legislative instrument, make a determination for the purposes of subclause (2).
Late payment penalty
(3) The ACMA may, by legislative instrument, determine that, if any charge payable by a person remains unpaid after the time when it became due for payment, the person is liable to pay to the Commonwealth, by way of penalty, an amount calculated at the rate of:
(a) 20% per annum; or
(b) if the determination specifies a lower percentage—that lower percentage per annum;
on the amount unpaid, computed from that time.
Determination has effect
(4) A determination under subclause (3) has effect accordingly.
Remission of penalty
(5) A determination under subclause (3) may authorise the ACMA to make decisions about the remission of the whole or a part of an amount of late payment penalty.
Payment of charge and late payment penalty
(6) Charge and late payment penalty are payable to the ACMA on behalf of the Commonwealth.
Recovery of charge and penalty
(7) Charge and late payment penalty may be recovered by the ACMA, on behalf of the Commonwealth, as debts due to the Commonwealth.
Payments to the Commonwealth
(8) Amounts received by way of charge or late payment penalty must be paid to the Commonwealth.
52 Cancellation of certain exemptions from datacasting charge
(1) This clause cancels the effect of a provision of another Act that would have the effect of exempting a person from liability to pay charge imposed by the Datacasting Charge (Imposition) Act 1998.
(2) The cancellation does not apply if the provision of the other Act is enacted after the commencement of this clause and refers specifically to charge imposed by the Datacasting Charge (Imposition) Act 1998.
Part 10—Review of decisions
62 Review by the AAT
Transmitter access regime
(5) An application may be made to the AAT for a review of a decision of the ACMA to issue a certificate under subclause 45(5), 45A(6) or 46(5).
(6) An application under subclause (5) may only be made by the access seeker concerned.
(7) An application may be made to the AAT for a review of a decision of the ACMA to refuse to issue a certificate under subclause 45(5) or 46(5).
(8) An application under subclause (7) may only be made by the owner or operator of the broadcasting transmission tower concerned.
(9) An application may be made to the AAT for a review of a decision of the ACMA to refuse to issue a certificate under subclause 45A(6).
(10) An application under subclause (9) may only be made by the owner or operator of the designated associated facility concerned.
63 Notification of decisions to include notification of reasons and appeal rights
If the ACMA makes a decision that is reviewable under clause 62, the ACMA is to include in the document by which the decision is notified:
(a) a statement setting out the reasons for the decision; and
(b) a statement to the effect that an application may be made to the AAT for a review of the decision.
Schedule 5—Online services
Note: See section 216B.
Part 1—Introduction
2 Simplified outline
The following is a simplified outline of this Schedule:
• This Schedule sets up a system for regulating certain aspects of the internet industry.
• If the ACMA is satisfied that internet content hosted outside Australia is prohibited content or potential prohibited content, the ACMA must:
(a) if the ACMA considers that the content is of a sufficiently serious nature to warrant referral to a law enforcement agency—notify the content to an Australian police force; and
(b) notify the content to internet service providers so that the providers can deal with the content in accordance with procedures specified in an industry code or industry standard (for example, procedures for the filtering, by technical means, of such content).
• Bodies and associations that represent the internet service provider section of the internet industry may develop industry codes.
• The ACMA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.
• The ACMA may make online provider determinations regulating internet service providers.
3 Definitions
In this Schedule, unless the contrary intention appears:
AAT means the Administrative Appeals Tribunal.
access includes:
(a) access that is subject to a pre‑condition (for example, the use of a password); and
(b) access by way of push technology; and
(c) access by way of a standing request.
adult means an individual who is 18 or older.
Australia, when used in a geographical sense, includes all the external Territories.
Australian police force means:
(a) the Australian Federal Police; or
(b) the police force of a State or Territory.
child means an individual who is not an adult.
civil proceeding includes a civil action.
Classification Board means the Classification Board established by the Classification (Publications, Films and Computer Games) Act 1995.
classified means classified under Schedule 7.
computer game has the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995.
data storage device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.
designated notification scheme means a scheme:
(a) in the nature of a scheme for substituted service; and
(b) under which the ACMA is taken, for the purposes of this Schedule, to have notified each internet service provider of a matter or thing.
Note: For example, the ACMA may make matters or things available on the internet (with or without security measures).
film has the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995.
Note: Film is defined broadly in that Act, and includes any form of recording from which a visual image can be produced.
immediate circle has the same meaning as in the Telecommunications Act 1997.
information means information:
(a) whether in the form of text; or
(b) whether in the form of data; or
(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.
internet carriage service means a listed carriage service that enables end‑users to access the internet.
internet content means information that:
(a) is kept on a data storage device; and
(b) is accessed, or available for access, using an internet carriage service;
but does not include:
(c) ordinary email; or
(d) information that is transmitted in the form of a broadcasting service.
internet content host means a person who hosts internet content in Australia, or who proposes to host internet content in Australia.
internet service provider has the meaning given by clause 8.
listed carriage service has the same meaning as in the Telecommunications Act 1997.
online provider rule has the meaning given by clause 79.
ordinary email does not include a posting to a newsgroup.
point‑to‑multipoint service has the same meaning as in the Telecommunications Act 1997.
potential prohibited content has the same meaning as in Schedule 7.
prohibited content has the same meaning as in Schedule 7.
special access‑prevention notice means a notice under clause 47.
standard access‑prevention notice means a notice under paragraph 40(1)(c) of this Schedule.
5 Internet content that consists of a film
For the purposes of this Schedule, in determining whether internet content consists of the entire unmodified contents of a film, disregard any differences between:
(a) the technique used to embody sounds and/or visual images in the film; and
(b) the technique used to embody the sounds and/or visual images in a form in which they can be accessed on the internet.
7 Extended meaning of use
Unless the contrary intention appears, a reference in this Schedule to the use of a thing is a reference to the use of the thing either:
(a) in isolation; or
(b) in conjunction with one or more other things.
Part 2—Internet service providers
8 Internet service providers
Basic definition
(1) For the purposes of this Schedule, if a person supplies, or proposes to supply, an internet carriage service to the public, the person is an internet service provider.
Declared internet service providers
(2) The Minister may, by legislative instrument, declare that a specified person who supplies, or proposes to supply, a specified internet carriage service is an internet service provider for the purposes of this Schedule. A declaration under this subclause has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
9 Supply to the public
(1) This clause sets out the circumstances in which an internet carriage service is taken, for the purposes of subclause 8(1), to be supplied to the public.
(2) If:
(a) an internet carriage service is used for the carriage of information between 2 end‑users; and
(b) each end‑user is outside the immediate circle of the supplier of the service;
the service is supplied to the public.
Note: If a company makes internet content available for access on the internet, and an individual obtains access to the content using an internet carriage service, the company and the individual are end‑users in relation to the carriage of the content by the internet carriage service.
(3) If:
(a) an internet carriage service is used to supply point‑to‑multipoint services to end‑users; and
(b) at least one end‑user is outside the immediate circle of the supplier of the service;
the service is supplied to the public.
(4) If:
(a) an internet carriage service is used to supply designated content services (other than point‑to‑multipoint services) to end‑users; and
(b) at least one end‑user is outside the immediate circle of the supplier of the service;
the service is supplied to the public.
(5) For the purposes of this clause, a designated content service is a content service of a kind specified in a determination made by the Minister by legislative instrument.
(7) In this clause:
content service has the same meaning as in the Telecommunications Act 1997.
Part 4—Complaints to, and investigations by, the ACMA
Division 1—Making of complaints to the ACMA
23 Complaints about breaches of online provider rules etc.
If a person has reason to believe that an internet service provider:
(a) has contravened a code registered under Part 5 of this Schedule that is applicable to the provider; or
(b) has contravened an online provider rule that is applicable to the provider;
the person may make a complaint to the ACMA about the matter.
24 Form of complaint
(1) A complaint under this Division is to be in writing.
(2) However, the ACMA may permit complaints to be given, in accordance with specified software requirements, by way of a specified kind of electronic transmission.
25 Residency etc. of complainant
A person is not entitled to make a complaint under this Division unless the person is:
(a) an individual who resides in Australia; or
(b) a body corporate that carries on activities in Australia; or
(c) the Commonwealth, a State or a Territory.
Division 2—Investigations by the ACMA
27 ACMA may investigate matters
If the ACMA thinks that it is desirable to do so, the ACMA may, on its own initiative or in response to a complaint made under Division 1, investigate whether an internet service provider:
(a) has contravened a code registered under Part 5 of this Schedule that is applicable to the provider; or
(b) has contravened an online provider rule that is applicable to the provider.
28 Conduct of investigations
(1) An investigation under this Division is to be conducted as the ACMA thinks fit.
(2) The ACMA may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as it thinks fit.
(3) This clause has effect subject to Part 13 of this Act (which confers certain investigative powers on the ACMA).
29 Protection from civil proceedings
Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:
(a) the making of a complaint under Division 1;
(b) the making of a statement to, or the giving of a document or information to, the ACMA in connection with an investigation under this Division.
Division 4—Action to be taken in relation to a complaint about prohibited content hosted outside Australia
40 Action to be taken in relation to a complaint about prohibited content hosted outside Australia
(1) If, in the course of an investigation under Division 2 of Part 3 of Schedule 7, the ACMA is satisfied that internet content hosted outside Australia is prohibited content or potential prohibited content, the ACMA must:
(a) if the ACMA considers the content is of a sufficiently serious nature to warrant referral to a law enforcement agency (whether in or outside Australia)—notify the content to:
(i) a member of an Australian police force; or
(ii) if there is an arrangement between the ACMA and the chief (however described) of an Australian police force under which the ACMA is authorised to notify the content to a another person or body (whether in or outside Australia)—that other person or body; and
(b) if a code registered, or standard determined, under Part 5 of this Schedule deals with the matters referred to in subclause 60(2)—notify the content to internet service providers under the designated notification scheme set out in the code or standard, as the case may be; and
(c) if paragraph (b) does not apply—give each internet service provider known to the ACMA a written notice (a standard access‑prevention notice) directing the provider to take all reasonable steps to prevent end‑users from accessing the content.
Note: The ACMA may be taken to have given a notice under paragraph (c)—see clause 51.
(2) For the purposes of paragraph (1)(c), in determining whether particular steps are reasonable, regard must be had to:
(a) the technical and commercial feasibility of taking the steps; and
(b) the matters set out in subsection 4(3).
(3) Subclause (2) does not, by implication, limit the matters to which regard must be had.
Recognised alternative access‑prevention arrangements
(4) An internet service provider is not required to comply with a standard access‑prevention notice in relation to a particular end‑user if access by the end‑user is subject to a recognised alternative access‑prevention arrangement (as defined by subclause (5)) that is applicable to the end‑user.
(5) The ACMA may, by legislative instrument, declare that a specified arrangement is a recognised alternative access‑prevention arrangement for the purposes of the application of this Division to one or more specified end‑users if the ACMA is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end‑users to prohibited content and potential prohibited content.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
(6) The following are examples of arrangements that could be declared to be recognised alternative access‑prevention arrangements under subclause (5):
(a) an arrangement that involves the use of regularly updated internet content filtering software;
(b) an arrangement that involves the use of a “family‑friendly” filtered internet carriage service.
Referral to law enforcement agency
(8) The manner in which internet content may be notified under paragraph (1)(a) to a member of an Australian police force includes (but is not limited to) a manner ascertained in accordance with an arrangement between the ACMA and the chief (however described) of the police force concerned.
(9) If a member of an Australian police force is notified of particular internet content under this clause, the member may notify the content to a member of another law enforcement agency (whether in or outside Australia).
(10) This clause does not, by implication, limit the ACMA’s powers to refer other matters to a member of an Australian police force.
41 Deferral of action in order to avoid prejudicing a criminal investigation
(1) If:
(a) in the course of an investigation under Division 2 of Part 3 of Schedule 7, the ACMA is satisfied that internet content hosted outside Australia is prohibited content or potential prohibited content; and
(b) apart from this subclause, the ACMA would be required to take action under subclause 40(1) in relation to the content; and
(c) a member of an Australian police force satisfies the ACMA that the taking of that action should be deferred until the end of a particular period in order to avoid prejudicing a criminal investigation;
the ACMA may defer taking that action until the end of that period.
(2) Subclause (1) has effect despite anything in clause 40.
42 Withdrawal of notification of content—reclassification of internet content
(1) If:
(a) internet content has been classified by the Classification Board (otherwise than because of subclause 24(1) or (2) of Schedule 7); and
(b) the internet content has been notified to internet service providers as mentioned in paragraph 40(1)(b) of this Schedule; and
(c) the Classification Board reclassifies the internet content; and
(d) as a result of the reclassification, the internet content ceases to be prohibited content;
the notification of the internet content is taken to have been withdrawn.
(2) If:
(a) a notification of internet content is withdrawn under subclause (1); and
(b) a code registered, or standard determined, under Part 5 of this Schedule deals with the matters referred to in subclause 60(2);
the ACMA must notify the withdrawal to internet service providers under the designated notification scheme set out in the code or standard, as the case may be.
43 Withdrawal of notification of content—reclassification of internet content that consists of a film or a computer game
(1) If:
(a) internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the Classification Board reclassifies the film or computer game under the Classification (Publications, Films and Computer Games) Act 1995; and
(c) the internet content has been notified to internet service providers as mentioned in paragraph 40(1)(b) of this Schedule; and
(d) as a result of the reclassification, the internet content ceases to be prohibited content;
the notification of the internet content is taken to have been withdrawn.
(2) If:
(a) a notification of internet content is withdrawn under subclause (1); and
(b) a code registered, or standard determined, under Part 5 of this Schedule deals with the matters referred to in subclause 60(2);
the ACMA must notify the withdrawal to internet service providers under the designated notification scheme set out in the code or standard, as the case may be.
44 Revocation of standard access‑prevention notice—reclassification of internet content
(1) If:
(a) internet content has been classified by the Classification Board (otherwise than because of subclause 24(1) or (2) of Schedule 7); and
(b) a standard access‑prevention notice relating to the internet content is applicable to a particular internet service provider; and
(c) the Classification Board reclassifies the internet content; and
(d) as a result of the reclassification, the content ceases to be prohibited content;
the ACMA is taken to have revoked the standard access‑prevention notice.
(2) If a standard access‑prevention notice is revoked under this clause, the ACMA must give the internet service provider concerned a written notice stating that the standard access‑prevention notice has been revoked.
Note: The ACMA may be taken to have given a notice under subclause (2)—see clause 51.
45 Revocation of standard access‑prevention notice—reclassification of internet content that consists of a film or a computer game
(1) If:
(a) internet content consists of:
(i) the entire unmodified contents of a film; or
(ii) a computer game; and
(b) the Classification Board reclassifies the film or computer game under the Classification (Publications, Films and Computer Games) Act 1995; and
(c) a standard access‑prevention notice relating to the internet content is applicable to a particular internet service provider; and
(d) as a result of the reclassification, the internet content ceases to be prohibited content;
the ACMA is taken to have revoked the standard access‑prevention notice.
(2) If a standard access‑prevention notice is revoked under this clause, the ACMA must give the internet service provider concerned a written notice stating that the standard access‑prevention notice has been revoked.
Note: The ACMA may be taken to have given a notice under subclause (2)—see clause 51.
46 Anti‑avoidance—notified internet content
(1) If:
(a) particular internet content has been notified to internet service providers as mentioned in paragraph 40(1)(b) of this Schedule; and
(b) the notification has not been withdrawn; and
(c) the ACMA is satisfied that internet content (the similar internet content) that is the same as, or substantially similar to, the first‑mentioned internet content is being hosted outside Australia; and
(d) the ACMA is satisfied that the similar internet content is prohibited content or potential prohibited content; and
(e) a code registered, or standard determined, under Part 5 of this Schedule deals with the matters referred to in subclause 60(2);
the ACMA must notify the similar internet content to internet service providers under the designated notification scheme set out in the code or standard, as the case may be.
(2) If:
(a) particular internet content is notified to internet service providers as mentioned in paragraph 40(1)(b) of this Schedule; and
(b) as a result of the application of subclause (1) to that content, the ACMA notifies similar internet content to internet service providers in accordance with subclause (1); and
(c) the notification of the first‑mentioned content is withdrawn;
the notification of the similar internet content is taken to have been withdrawn.
(3) If:
(a) a notification of internet content is withdrawn under subclause (2); and
(b) a code registered, or standard determined, under Part 5 of this Schedule deals with the matters referred to in subclause 60(2);
the ACMA must notify the withdrawal to internet service providers under the designated notification scheme set out in the code or standard, as the case may be.
47 Anti‑avoidance—special access‑prevention notice
(1) If:
(a) a standard access‑prevention notice relating to particular internet content is applicable to a particular internet service provider; and
(b) the ACMA is satisfied that the internet service provider is supplying an internet carriage service that enables end‑users to access internet content (the similar internet content) that is the same as, or substantially similar to, the internet content identified in the standard access‑prevention notice; and
(c) the ACMA is satisfied that the similar internet content is prohibited content or potential prohibited content;
the ACMA may give the provider a written notice (special access‑prevention notice) directing the provider to take all reasonable steps to prevent end‑users from accessing the similar internet content at any time when the standard access‑prevention notice is in force.
Note: The ACMA may be taken to have given a notice under this clause—see clause 51.
(2) For the purposes of subclause (1), in determining whether particular steps are reasonable, regard must be had to:
(a) the technical and commercial feasibility of taking the steps; and
(b) the matters set out in subsection 4(3).
(3) Subclause (2) does not, by implication, limit the matters to which regard must be had.
Recognised alternative access‑prevention arrangements
(4) An internet service provider is not required to comply with a special access‑prevention notice in relation to a particular end‑user if access by the end‑user is subject to a recognised alternative access‑prevention arrangement (as defined by subclause 40(5)) that is applicable to the end‑user.
48 Compliance with access‑prevention notices
Standard access‑prevention notice
(1) An internet service provider must comply with a standard access‑prevention notice that applies to the provider as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the provider.
Special access‑prevention notice
(2) An internet service provider must comply with a special access‑prevention notice that applies to the provider as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the provider.
Note: For enforcement, see Part 6 of this Schedule.
49 Notification of internet content
Internet content may be notified in accordance with this Division by:
(a) setting out the content; or
(b) describing the content; or
(c) in any other way.
50 Application of notifications under this Division
A notification under this Division applies to particular internet content only to the extent to which the content is accessed, or available for access, from a website, or a distinct part of a website, specified in the notification.
Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
51 ACMA may be taken to have issued access‑prevention notices
(1) Subject to subclause (2), the ACMA may, by legislative instrument, formulate a scheme:
(a) in the nature of a scheme for substituted service; and
(b) under which the ACMA is taken, for the purposes of this Schedule, to have done any or all of the following:
(i) given each internet service provider a standard access‑prevention notice under paragraph 40(1)(c) of this Schedule;
(ii) in a case where a standard access‑prevention notice is revoked under clause 44 or 45—given each internet service provider a notice of the revocation under whichever of subclause 44(2) or 45(2) is applicable;
(iii) given each internet service provider a special access‑prevention notice under clause 47.
(2) It is a minimum requirement for a scheme formulated under subclause (1) that each internet service provider be alerted by electronic means to the existence of a notice.
Note: For example, it is not sufficient for the ACMA to make notices available on the internet (with or without security measures) without notifying internet service providers that a notice has been issued.
(3) Paragraph 40(1)(c) of this Schedule has effect, in relation to a scheme under subclause (1), as if the reference in that paragraph to each internet service provider known to the ACMA were a reference to each internet service provider.
Part 5—Industry codes and industry standards
Division 1—Simplified outline
52 Simplified outline
The following is a simplified outline of this Part.
• Bodies and associations that represent the internet service provider section of the internet industry may develop industry codes.
• Industry codes may be registered by the ACMA.
• Compliance with an industry code is voluntary unless the ACMA directs a particular participant in the internet industry to comply with the code.
• The ACMA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.
• Compliance with industry standards is mandatory.
Division 2—Interpretation
53 Industry codes
For the purposes of this Part, an industry code is a code developed under this Part (whether or not in response to a request under this Part).
54 Industry standards
For the purposes of this Part, an industry standard is a standard determined under this Part.
55 Internet activity
For the purposes of this Part, an internet activity is an activity that consists of supplying an internet carriage service.
56 Section of the internet industry
(1) For the purposes of this Part, a section of the internet industry is to be ascertained in accordance with this clause.
(2) For the purposes of this Part, the group consisting of internet service providers constitutes a section of the internet industry.
57 Participants in a section of the internet industry
For the purposes of this Part, if a person is a member of a group that constitutes a section of the internet industry, the person is a participant in that section of the internet industry.
58 Designated body
The Minister may, by legislative instrument, declare that a specified body or association is the designated body for the purposes of this Part. The declaration has effect accordingly.
Division 3—General principles relating to industry codes and industry standards
59 Statement of regulatory policy
(2) The Parliament intends that bodies or associations that the ACMA is satisfied represent the internet service provider section of the internet industry should develop no more than 2 codes (industry codes) that are to apply to participants in that section of the industry in relation to the internet activities of the participants.
(3) The Parliament intends that, for the internet service provider section of the internet industry, one of those industry codes should deal exclusively with the matters set out in subclause 60(2).
60 Matters that must be dealt with by industry codes and industry standards
General matters
(1) The Parliament intends that, for the internet service provider section of the internet industry, there should be:
(a) an industry code or an industry standard that deals with; or
(b) an industry code and an industry standard that together deal with;
each of the following matters:
(c) procedures directed towards the achievement of the objective of ensuring that online accounts are not provided to children without the consent of a parent or responsible adult;
(d) giving parents and responsible adults information about how to supervise and control children’s access to internet content;
(e) procedures to be followed in order to assist parents and responsible adults to supervise and control children’s access to internet content;
(f) procedures to be followed in order to inform producers of internet content about their legal responsibilities in relation to that content;
(g) telling customers about their rights to make complaints under clause 23;
(h) procedures to be followed in order to assist customers to make complaints under clause 23;
(i) procedures to be followed in order to deal with complaints about unsolicited email that promotes or advertises one or more:
(i) websites; or
(ii) distinct parts of websites;
that enable, or purport to enable, end‑users to access information that is likely to cause offence to a reasonable adult;
(j) subject to subclause (8A), action to be taken to assist in the development and implementation of internet content filtering technologies (including labelling technologies);
(k) subject to subclause (8A), giving customers information about the availability, use and appropriate application of internet content filtering software;
(l) subject to subclause (8A), procedures directed towards the achievement of the objective of ensuring that customers have the option of subscribing to a filtered internet carriage service;
(la) if a determination is in force under subclause (8A) in relation to a device:
(i) procedures to be followed in order to inform the users of such a device of the unavailability of internet content filtering; and
(ii) procedures directed towards the achievement of the objective of ensuring that customers have the option of blocking access to the internet using such a device;
(m) procedures directed towards the achievement of the objective of ensuring that, in the event that a participant in the internet service provider section of the internet industry becomes aware that an internet content host is hosting prohibited content in Australia, the host is told about the prohibited content.
Other matters
(2) The Parliament intends that, for the internet service provider section of the internet industry, there should be:
(a) an industry code or an industry standard that deals with; or
(b) an industry code and an industry standard that together deal with;
each of the following matters:
(c) the formulation of a designated notification scheme;
(d) subject to subclause (8A), procedures to be followed by internet service providers in dealing with internet content notified under paragraph 40(1)(b) of this Schedule or clause 46 (for example, procedures to be followed by a particular class of internet service providers for the filtering, by technical means, of such content).
Designated alternative access‑prevention arrangements
(3) An industry code or an industry standard may provide that an internet service provider is not required to deal with internet content notified under paragraph 40(1)(b) of this Schedule or clause 46 by taking steps to prevent particular end‑users from accessing the content if access by the end‑users is subject to an arrangement that is declared by the code or standard to be a designated alternative access‑prevention arrangement for the purposes of the application of this clause to those end‑users.
(4) An industry code developed by a body or association must not declare that a specified arrangement is a designated alternative access‑prevention arrangement for the purposes of the application of this clause to one or more specified end‑users unless the body or association is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end‑users to prohibited content and potential prohibited content.
Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
(5) An industry standard made by the ACMA must not declare that a specified arrangement is a designated alternative access‑prevention arrangement for the purposes of the application of this clause to one or more specified end‑users unless the ACMA is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end‑users to prohibited content and potential prohibited content.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
(6) The following are examples of arrangements that could be declared to be designated alternative access‑prevention arrangements:
(a) an arrangement that involves the use of regularly updated internet content filtering software;
(b) an arrangement that involves the use of a “family‑friendly” filtered internet carriage service.
(7) For the purposes of this Schedule, if an industry code:
(a) deals to any extent with procedures to be followed by internet service providers in dealing with internet content notified under paragraph 40(1)(b) of this Schedule or clause 46; and
(b) makes provision as mentioned in subclause (3);
then:
(c) the code is taken to deal with the matter set out in paragraph (2)(d); and
(d) the code is taken to be consistent with subclause (2).
(8) For the purposes of this Schedule, if an industry standard:
(a) deals to any extent with procedures to be followed by internet service providers in dealing with internet content notified under paragraph 40(1)(b) of this Schedule or clause 46; and
(b) makes provision as mentioned in subclause (3);
then:
(c) the standard is taken to deal with the matter set out in paragraph (2)(d); and
(d) the standard is taken to be consistent with subclause (2).
Internet content filtering—devices
(8A) If the Minister is satisfied that internet content filtering is not viable in relation to access to internet content using a particular device (for example, a mobile telephone handset), the Minister may, by legislative instrument, determine that paragraphs (1)(j), (k) and (l) and (2)(d) do not apply in relation to access to internet content using that device.
Clause does not limit matters
(9) This clause does not, by implication, limit the matters that may be dealt with by industry codes and industry standards.
61 Industry codes and industry standards not to deal with certain matters
For the purposes of this Part, an industry code or an industry standard that deals with a particular matter has no effect to the extent (if any) to which the matter is dealt with by:
(a) a code registered, or a standard determined, under Part 6 of the Telecommunications Act 1997; or
(b) the Telecommunications Industry Ombudsman scheme (within the meaning of that Act).
Division 4—Industry codes
62 Registration of industry codes
(1) This clause applies if:
(a) the ACMA is satisfied that a body or association represents a particular section of the internet industry; and
(b) that body or association develops an industry code that applies to participants in that section of the industry and deals with one or more matters relating to the internet activities of those participants; and
(c) the body or association gives a copy of the code to the ACMA; and
(d) the ACMA is satisfied that:
(i) to the extent to which the code deals with one or more matters of substantial relevance to the community—the code provides appropriate community safeguards for that matter or those matters; and
(ii) to the extent to which the code deals with one or more matters that are not of substantial relevance to the community—the code deals with that matter or those matters in an appropriate manner; and
(e) the ACMA is satisfied that, before giving the copy of the code to the ACMA:
(i) the body or association published a draft of the code and invited members of the public to make submissions to the body or association about the draft within a specified period; and
(ii) the body or association gave consideration to any submissions that were received from members of the public within that period; and
(f) the ACMA is satisfied that, before giving the copy of the code to the ACMA:
(i) the body or association published a draft of the code and invited participants in that section of the industry to make submissions to the body or association about the draft within a specified period; and
(ii) the body or association gave consideration to any submissions that were received from participants in that section of the industry within that period; and
(g) the ACMA is satisfied that the designated body has been consulted about the development of the code; and
(i) in a case where the code:
(i) relates to the internet service provider section of the internet industry; and
(ii) does not deal with a matter set out in subclause 60(2);
the code is consistent with subclauses 59(2) and 60(1); and
(j) in a case where the code:
(i) relates to the internet service provider section of the internet industry; and
(ii) deals with a matter set out in subclause 60(2);
the code is consistent with subclauses 59(2) and (3) and 60(2).
Note: Designated body is defined by clause 58.
(2) The ACMA must register the code by including it in the Register of industry codes kept under clause 78.
(3) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must run for at least 30 days.
(4) If:
(a) an industry code (the new code) is registered under this Part; and
(b) the new code is expressed to replace another industry code;
the other code ceases to be registered under this Part when the new code is registered.
63 ACMA may request codes
(1) If the ACMA is satisfied that a body or association represents a particular section of the internet industry, the ACMA may, by written notice given to the body or association, request the body or association to:
(a) develop an industry code that applies to participants in that section of the industry and deals with one or more specified matters relating to the internet activities of those participants; and
(b) give the ACMA a copy of the code within the period specified in the notice.
(2) The period specified in a notice under subclause (1) must run for at least 120 days.
(3) The ACMA must not make a request under subclause (1) in relation to a particular section of the internet industry unless the ACMA is satisfied that:
(a) the development of the code is necessary or convenient in order to:
(i) provide appropriate community safeguards; or
(ii) otherwise deal with the performance or conduct of participants in that section of the industry; and
(b) in the absence of the request, it is unlikely that an industry code would be developed within a reasonable period.
(4) The ACMA may vary a notice under subclause (1) by extending the period specified in the notice.
(5) Subclause (4) does not, by implication, limit the application of subsection 33(3) of the Acts Interpretation Act 1901.
(6) A notice under subclause (1) may specify indicative targets for achieving progress in the development of the code (for example, a target of 60 days to develop a preliminary draft of the code).
64 Publication of notice where no body or association represents a section of the internet industry
(1) If the ACMA is satisfied that a particular section of the internet industry is not represented by a body or association, the ACMA may publish a notice in the Gazette:
(a) stating that, if such a body or association were to come into existence within a specified period, the ACMA would be likely to give a notice to that body or association under subclause 63(1); and
(b) setting out the matter or matters relating to internet activities that would be likely to be specified in the subclause 63(1) notice.
(2) The period specified in a notice under subclause (1) must run for at least 60 days.
65 Replacement of industry codes
(1) Changes to an industry code are to be achieved by replacing the code instead of varying the code.
(2) If the replacement code differs only in minor respects from the original code, clause 62 has effect, in relation to the registration of the code, as if paragraphs 62(1)(e) and (f) of this Schedule had not been enacted.
Note: Paragraphs 62(1)(e) and (f) deal with submissions about draft codes.
66 Compliance with industry codes
(1) If:
(a) a person is a participant in a particular section of the internet industry; and
(b) the ACMA is satisfied that the person has contravened, or is contravening, an industry code that:
(i) is registered under this Part; and
(ii) applies to participants in that section of the industry;
the ACMA may, by written notice given to the person, direct the person to comply with the industry code.
(2) A person must comply with a direction under subclause (1).
Note: For enforcement, see Part 6 of this Schedule.
67 Formal warnings—breach of industry codes
(1) This clause applies to a person who is a participant in a particular section of the internet industry.
(2) The ACMA may issue a formal warning if the person contravenes an industry code registered under this Part.
Division 5—Industry standards
68 ACMA may determine an industry standard if a request for an industry code is not complied with
(1) This clause applies if:
(a) the ACMA has made a request under subclause 63(1) in relation to the development of a code that is to:
(i) apply to participants in a particular section of the internet industry; and
(ii) deal with one or more matters relating to the internet activities of those participants; and
(b) any of the following conditions is satisfied:
(i) the request is not complied with;
(ii) if indicative targets for achieving progress in the development of the code were specified in the notice of request—any of those indicative targets were not met;
(iii) the request is complied with, but the ACMA subsequently refuses to register the code; and
(c) the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard in order to:
(i) provide appropriate community safeguards in relation to that matter or those matters; or
(ii) otherwise regulate adequately participants in that section of the industry in relation to that matter or those matters.
(2) The ACMA may, by legislative instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subclause is to be known as an industry standard.
(3) Before determining an industry standard under this clause, the ACMA must consult the body or association to whom the request mentioned in paragraph (1)(a) was made.
(5) The Minister may give the ACMA a written direction as to the exercise of its powers under this clause.
69 ACMA may determine industry standard where no industry body or association formed
(1) This clause applies if:
(a) the ACMA is satisfied that a particular section of the internet industry is not represented by a body or association; and
(b) the ACMA has published a notice under subclause 64(1) relating to that section of the industry; and
(c) that notice:
(i) states that, if such a body or association were to come into existence within a particular period, the ACMA would be likely to give a notice to that body or association under subclause 63(1); and
(ii) sets out one or more matters relating to the internet activities of the participants in that section of the industry; and
(d) no such body or association comes into existence within that period; and
(e) the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard in order to:
(i) provide appropriate community safeguards in relation to that matter or those matters; or
(ii) otherwise regulate adequately participants in that section of the industry in relation to that matter or those matters.
(2) The ACMA may, by legislative instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subclause is to be known as an industry standard.
(4) The Minister may give the ACMA a written direction as to the exercise of its powers under this clause.
70 ACMA may determine industry standards—total failure of industry codes
(1) This clause applies if:
(a) an industry code that:
(i) applies to participants in a particular section of the internet industry; and
(ii) deals with one or more matters relating to the internet activities of those participants;
has been registered under this Part for at least 180 days; and
(b) the ACMA is satisfied that the code is totally deficient (as defined by subclause (7)); and
(c) the ACMA has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period; and
(d) that period ends and the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard that applies to participants in that section of the industry and deals with that matter or those matters.
(2) The period specified in a notice under paragraph (1)(c) must run for at least 30 days.
(3) The ACMA may, by legislative instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subclause is to be known as an industry standard.
(4) If the ACMA is satisfied that a body or association represents that section of the industry, the ACMA must consult the body or association before determining an industry standard under subclause (3).
(6) The industry code ceases to be registered under this Part on the day on which the industry standard comes into force.
(7) For the purposes of this clause, an industry code that applies to participants in a particular section of the internet industry and deals with one or more matters relating to the internet activities of those participants is totally deficient if, and only if:
(a) the code is not operating to provide appropriate community safeguards in relation to that matter or those matters; or
(b) the code is not otherwise operating to regulate adequately participants in that section of the industry in relation to that matter or those matters.
(8) The Minister may give the ACMA a written direction as to the exercise of its powers under this clause.
71 ACMA may determine industry standards—partial failure of industry codes
(1) This clause applies if:
(a) an industry code that:
(i) applies to participants in a particular section of the internet industry; and
(ii) deals with 2 or more matters relating to the internet activities of those participants;
has been registered under this Part for at least 180 days; and
(b) clause 70 does not apply to the code; and
(c) the ACMA is satisfied that the code is deficient (as defined by subclause (7)) to the extent to which the code deals with one or more of those matters (the deficient matter or deficient matters); and
(d) the ACMA has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period; and
(e) that period ends and the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard that applies to participants in that section of the industry and deals with the deficient matter or deficient matters.
(2) The period specified in a notice under paragraph (1)(c) must run for at least 30 days.
(3) The ACMA may, by legislative instrument, determine a standard that applies to participants in that section of the industry and deals with the deficient matter or deficient matters. A standard under this subclause is to be known as an industry standard.
(4) If the ACMA is satisfied that a body or association represents that section of the industry, the ACMA must consult the body or association before determining an industry standard under subclause (3).
(6) On and after the day on which the industry standard comes into force, the industry code has no effect to the extent to which it deals with the deficient matter or deficient matters. However, this subclause does not affect:
(a) the continuing registration of the remainder of the industry code; or
(b) any investigation, proceeding or remedy in respect of a contravention of the industry code or clause 66 that occurred before that day.
(7) For the purposes of this clause, an industry code that applies to participants in a particular section of the internet industry and deals with 2 or more matters relating to the internet activities of those participants is deficient to the extent to which it deals with a particular one of those matters if, and only if:
(a) the code is not operating to provide appropriate community safeguards in relation to that matter; or
(b) the code is not otherwise operating to regulate adequately participants in that section of the industry in relation to that matter.
(8) The Minister may give the ACMA a written direction as to the exercise of its powers under this clause.
72 Compliance with industry standards
If:
(a) an industry standard that applies to participants in a particular section of the internet industry is registered under this Part; and
(b) a person is a participant in that section of the internet industry;
the person must comply with the industry standard.
Note: For enforcement, see Part 6 of this Schedule.
73 Formal warnings—breach of industry standards
(1) This clause applies to a person who is a participant in a particular section of the internet industry.
(2) The ACMA may issue a formal warning if the person contravenes an industry standard registered under this Part.
74 Variation of industry standards
The ACMA may, by legislative instrument, vary an industry standard that applies to participants in a particular section of the internet industry if it is satisfied that it is necessary or convenient to do so to:
(a) provide appropriate community safeguards in relation to one or more matters relating to the internet activities of those participants; and
(b) otherwise regulate adequately those participants in relation to one or more matters relating to the internet activities of those participants.
75 Revocation of industry standards
(1) The ACMA may, by legislative instrument, revoke an industry standard.
(2) If:
(a) an industry code is registered under this Part; and
(b) the code is expressed to replace an industry standard;
the industry standard is revoked when the code is registered.
77 Consultation with designated body
(1) Before determining or varying an industry standard, the ACMA must consult the designated body.
(2) Before revoking an industry standard under subclause 75(1), the ACMA must consult the designated body.
Note: Designated body is defined by clause 58.
Division 6—Register of industry codes and industry standards
78 ACMA to maintain Register of industry codes and industry standards
(1) The ACMA is to maintain a Register in which the ACMA includes:
(a) all industry codes required to be registered under this Part; and
(b) all industry standards; and
(c) all requests made under clause 63; and
(d) all notices under clause 64; and
(e) all directions under clause 66.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
Part 6—Online provider rules
79 Online provider rules
For the purposes of this Schedule, each of the following is an online provider rule:
(e) the rule set out in subclause 48(1);
(f) the rule set out in subclause 48(2);
(g) the rule set out in subclause 66(2);
(h) the rule set out in clause 72;
(i) each of the rules (if any) set out in an online provider determination in force under clause 80.
80 Online provider determinations
(1) The ACMA may, by legislative instrument, make a determination setting out rules that apply to internet service providers in relation to the supply of internet carriage services.
(3) A determination under subclause (1) is called an online provider determination.
(4) An online provider determination has effect only to the extent that:
(a) it is authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution); or
(b) both:
(i) it is authorised by section 122 of the Constitution; and
(ii) it would have been authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution) if section 51 of the Constitution extended to the Territories.
(5) The ACMA must not make an online provider determination unless the determination relates to a matter specified in the regulations.
(6) The ACMA must not make an online provider determination if the determination relates to a matter specified in regulations in force for the purposes of subsection 99(3) of the Telecommunications Act 1997.
(7) An online provider determination may make provision for or in relation to a particular matter by empowering the ACMA to make decisions of an administrative character.
81 Exemptions from online provider determinations
(1) The Minister may, by legislative instrument, determine that a specified internet service provider is exempt from online provider determinations.
(2) The Minister may, by legislative instrument, determine that a specified internet service provider is exempt from a specified online provider determination.
(3) A determination under this clause may be unconditional or subject to such conditions (if any) as are specified in the determination.
(4) A determination under this clause has effect accordingly.
82 Compliance with online provider rules
(1) A person is guilty of an offence if:
(a) an online provider rule is applicable to the person; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the rule.
Penalty: 50 penalty units.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this clause.
(2) In this clause:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
83 Remedial directions—breach of online provider rules
(1) This clause applies if an internet service provider has contravened, or is contravening, an online provider rule.
(2) The ACMA may give the provider a written direction requiring the provider to take specified action directed towards ensuring that the provider does not contravene the rule, or is unlikely to contravene the rule, in the future.
(3) The following are examples of the kinds of direction that may be given to an internet service provider under subclause (2):
(a) a direction that the provider implement effective administrative systems for monitoring compliance with an online provider rule;
(b) a direction that the provider implement a system designed to give the provider’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of an online provider rule, in so far as those requirements affect the employees, agents or contractors concerned.
(4) A person is guilty of an offence if:
(a) the person is subject to a direction under subclause (2); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the direction.
Penalty: 50 penalty units.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subclause.
(5) In this clause:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
84 Formal warnings—breach of online provider rules
The ACMA may issue a formal warning if a person contravenes an online provider rule.
85 Federal Court may order a person to cease supplying internet carriage services
(1) If the ACMA is satisfied that a person who is an internet service provider is supplying an internet carriage service otherwise than in accordance with an online provider rule, the ACMA may apply to the Federal Court for an order that the person cease supplying that internet carriage service.
(2) If the Federal Court is satisfied, on such an application, that the person is supplying an internet carriage service otherwise than in accordance with the online provider rule, the Federal Court may order the person to cease supplying that internet carriage service.
Part 7—Offences
86 Continuing offences
A person who contravenes clause 82 or subclause 83(4) is guilty of a separate offence in respect of each day (including the day of a conviction for the offence or any later day) during which the contravention continues.
87 Conduct by directors, employees and agents
Body corporate
(1) If, in proceedings for an ancillary offence relating to this Schedule, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the director, employee or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for:
(a) an offence against this Schedule; or
(b) an ancillary offence relating this Schedule;
to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
Person other than a body corporate
(3) If, in proceedings for an ancillary offence relating to this Schedule, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and
(b) that the employee or agent had the state of mind.
(4) Any conduct engaged in on behalf of a person other than a body corporate by an employee or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for:
(a) an offence against this Schedule; or
(b) an ancillary offence relating this Schedule;
to have been engaged in also by the first‑mentioned person unless the first‑mentioned person establishes that the first‑mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.
(5) If:
(a) a person other than a body corporate is convicted of an offence; and
(b) the person would not have been convicted of the offence if subclauses (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that offence.
State of mind
(6) A reference in subclause (1) or (3) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Director
(7) A reference in this clause to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.
Engaging in conduct
(8) A reference in this clause to engaging in conduct includes a reference to failing or refusing to engage in conduct.
Ancillary offence relating to this Schedule
(9) A reference in this clause to an ancillary offence relating to this Schedule is a reference to an offence created by section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code that relates to this Schedule.
Part 8—Protection from civil and criminal proceedings
88 Protection from civil proceedings—internet service providers
(1) Civil proceedings do not lie against an internet service provider in respect of anything done by the provider in compliance with:
(a) a code registered under Part 5 of this Schedule; or
(b) a standard determined under Part 5 of this Schedule;
in so far as the code or standard deals with procedures referred to in paragraph 60(2)(d) of this Schedule.
(2) Civil proceedings do not lie against an internet service provider in respect of anything done by the provider in compliance with clause 48.
Part 9—Operation of State and Territory laws etc.
90 Concurrent operation of State and Territory laws
It is the intention of the Parliament that this Schedule is not to apply to the exclusion of a law of a State or Territory to the extent to which that law is capable of operating concurrently with this Schedule.
91 Liability of internet content hosts and internet service providers under State and Territory laws etc.
(1) A law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:
(a) subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host to liability (whether criminal or civil) in respect of hosting particular internet content in a case where the host was not aware of the nature of the internet content; or
(b) requires, or would have the effect (whether direct or indirect) of requiring, an internet content host to monitor, make inquiries about, or keep records of, internet content hosted by the host; or
(c) subjects, or would have the effect (whether direct or indirect) of subjecting, an internet service provider to liability (whether criminal or civil) in respect of carrying particular internet content in a case where the service provider was not aware of the nature of the internet content; or
(d) requires, or would have the effect (whether direct or indirect) of requiring, an internet service provider to monitor, make inquiries about, or keep records of, internet content carried by the provider.
(2) The Minister may, by legislative instrument, exempt a specified law of a State or Territory, or a specified rule of common law or equity, from the operation of subclause (1).
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
(3) An exemption under subclause (2) may be unconditional or subject to such conditions (if any) as are specified in the exemption.
Declaration by Minister
(4) The Minister may, by legislative instrument, declare that a specified law of a State or Territory, or a specified rule of common law or equity, has no effect to the extent to which the law or rule has a specified effect in relation to an internet content host.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
(5) The Minister may, by legislative instrument, declare that a specified law of a State or Territory, or a specified rule of common law or equity, has no effect to the extent to which the law or rule has a specified effect in relation to an internet service provider.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
(6) A declaration under subclause (4) or (5) has effect only to the extent that:
(a) it is authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution); or
(b) both:
(i) it is authorised by section 122 of the Constitution; and
(ii) it would have been authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution) if section 51 of the Constitution extended to the Territories.
Part 10—Review of decisions
92 Review by the AAT
(1) An application may be made to the AAT for a review of any of the following decisions made by the ACMA:
(e) a decision to give an internet service provider a standard access‑prevention notice;
(f) a decision to give an internet service provider a special access‑prevention notice;
(g) a decision under clause 66 or 83 to:
(i) give a direction to an internet service provider; or
(ii) vary a direction that is applicable to an internet service provider; or
(iii) refuse to revoke a direction that is applicable to an internet service provider;
(h) a decision of a kind referred to in subclause 80(7) (which deals with decisions under online provider determinations), where the decision relates to an internet service provider.
(2) An application under subclause (1) may only be made by the internet service provider concerned.
(3) An application may be made to the AAT for a review of a decision of the ACMA under clause 62 to refuse to register a code.
(4) An application under subclause (3) may only be made by the body or association that developed the code.
93 Notification of decisions to include notification of reasons and appeal rights
If the ACMA makes a decision that is reviewable under clause 92, the ACMA is to include in the document by which the decision is notified:
(a) a statement setting out the reasons for the decision; and
(b) a statement to the effect that an application may be made to the AAT for a review of the decision.
Part 11—Miscellaneous
94 Additional ACMA functions
The ACMA has the following functions:
(a) to monitor compliance with codes and standards registered under Part 5 of this Schedule;
(b) to advise and assist parents and responsible adults in relation to the supervision and control of children’s access to internet content;
(c) to conduct and/or co‑ordinate community education programs about internet content and internet carriage services, in consultation with relevant industry and consumer groups and government agencies;
(d) to conduct and/or commission research into issues relating to internet content and internet carriage services;
(e) to liaise with regulatory and other relevant bodies overseas about co‑operative arrangements for the regulation of the internet industry, including (but not limited to) collaborative arrangements to develop:
(i) multilateral codes of practice; and
(ii) internet content labelling technologies;
(f) to inform itself and advise the Minister on technological developments and service trends in the internet industry.
96 Schedule not to affect performance of State or Territory functions
A power conferred by this Schedule must not be exercised in such a way as to prevent the exercise of the powers, or the performance of the functions, of government of a State, the Northern Territory, the Australian Capital Territory or Norfolk Island.
Schedule 6—Datacasting services
Note: See section 216c.
Part 1—Introduction
1 Simplified outline
The following is a simplified outline of this Schedule:
• This Schedule sets up a system for regulating the provision of datacasting services.
• A person who provides a designated datacasting service must hold a datacasting licence.
• Datacasting content will be subject to restrictions. Those restrictions are designed to encourage datacasting licensees to provide a range of innovative services that are different to traditional broadcasting services.
• The main restrictions on datacasting content are as follows:
(a) restrictions on the provision of certain genres of television programs;
(b) restrictions on the provision of audio content.
• Datacasting licensees (other than restricted datacasting licensees) will be allowed to provide the following types of content:
(a) information‑only programs (including matter that enables people to carry out transactions);
(b) educational programs;
(c) interactive computer games;
(d) content in the form of text or still visual images;
(e) Parliamentary broadcasts;
(f) ordinary email;
(g) internet content.
• Restricted datacasting licensees will not be allowed to provide content in a form that is specified in a legislative instrument made by the Minister.
• A group that represents datacasting licensees may develop codes of practice.
• The ACMA has a reserve power to make a standard if there are no codes of practice or if a code of practice is deficient.
• The ACMA may investigate complaints about datacasting licensees.
2 Definitions
(1) In this Schedule, unless the contrary intention appears:
advertising or sponsorship material means advertising or sponsorship material (whether or not of a commercial kind).
Classification Board means the Classification Board established by the Classification (Publications, Films and Computer Games) Act 1995.
compilation program means a program that consists of video clips or other matter edited together to form a structured program, where there is a heavy emphasis on entertainment value.
declared internet carriage service has the meaning given by clause 23B.
designated datacasting service has the meaning given by clause 2A.
designated teletext service means a teletext service provided by a commercial television broadcasting licensee, where:
(a) the licensee provided the service throughout the 2‑year period ending immediately before the commencement of this Schedule; and
(b) the service remains substantially the same as the service provided throughout that 2‑year period.
drama program has the same meaning as in section 103B.
educational program has the meaning given by clause 3.
engage in conduct (except in clause 55 or 56) means:
(a) do an act; or
(b) omit to perform an act.
financial, market or business information bulletin means a bulletin the sole or dominant purpose of which is to provide information, analysis, commentary or discussion in relation to financial, market or business matters.
foreign‑language news or current affairs program has the meaning given by clause 5.
information‑only program has the meaning given by clause 4.
infotainment or lifestyle program means a program the sole or dominant purpose of which is to present factual information in an entertaining way, where there is a heavy emphasis on entertainment value.
interactive computer game means a computer game, where:
(a) the way the game proceeds, and the result achieved at various stages of the game, is determined in response to the decisions, inputs and direct involvement of the player; and
(b) a part of the software that enables end‑users to play the game is under the control of the datacasting licensee concerned.
internet carriage service has the same meaning as in Schedule 5, but does not include a service that transmits content that has been copied from the internet, where the content is selected by the datacasting licensee concerned.
music program means a program the sole or dominant purpose of which is to provide:
(a) music with video clips; or
(b) video footage of musical performances;
or both.
news or current affairs program means any of the following:
(a) a news bulletin;
(b) a sports news bulletin;
(c) a program (whether presenter‑based or not) whose sole or dominant purpose is to provide analysis, commentary or discussion principally designed to inform the general community about social, economic or political issues of current relevance to the general community.
nominated datacaster declaration means a declaration under clause 45.
ordinary email does not include a posting to a newsgroup.
qualified entity means:
(a) a company that:
(i) is registered under Part 2A.2 of the Corporations Act 2001; and
(ii) has a share capital; or
(b) the Commonwealth, a State or a Territory; or
(c) the Australian Broadcasting Corporation; or
(d) the Special Broadcasting Service Corporation; or
(e) any other body corporate established for a public purpose by a law of the Commonwealth or of a State or Territory.
“reality television” program means a program the sole or dominant purpose of which is to depict actual, contemporary events, people or situations in a dramatic or entertaining way, where there is a heavy emphasis on dramatic impact or entertainment value.
related body corporate has the same meaning as in the Corporations Act 2001.
sports program means a program the sole or dominant purpose of which is to provide:
(a) coverage of one or more sporting events; or
(b) analysis, commentary or discussion in relation to one or more sporting events;
or both, but does not include a sports news bulletin.
transmitter licence has the same meaning as in the Radiocommunications Act 1992.
(2) In determining the meaning of an expression used in a provision of this Act (other than this Schedule), this clause is to be disregarded.
2A Designated datacasting service
(1) For the purposes of this Schedule, a designated datacasting service is a datacasting service that:
(a) is provided by a person who is:
(i) a commercial television broadcasting licensee; or
(ii) a commercial radio broadcasting licensee; or
(iii) a national broadcaster; or
(b) is of a kind specified in an instrument under subclause (2).
(2) The Minister may, by legislative instrument, specify kinds of datacasting services for the purposes of paragraph (1)(b).
3 Educational programs
(1) For the purposes of this Schedule, an educational program is matter, where, having regard to:
(a) the substance of the matter; and
(b) the way in which the matter is advertised or promoted; and
(c) any other relevant matters;
it would be concluded that the sole or dominant purpose of the matter is to assist a person in education or learning, whether or not in connection with a course of study or instruction.
(2) Subclause (1) has effect subject to subclauses (3) and (4).
ACMA determinations
(3) The ACMA may make a written determination providing that, for the purposes of this Schedule, specified matter is taken to be an educational program.
(4) The ACMA may make a written determination providing that, for the purposes of this Schedule, specified matter is taken not to be an educational program.
(5) A determination under subclause (3) or (4) has effect accordingly.
(6) A determination under subclause (3) or (4) is to be an instrument of a legislative character.
(7) A determination under subclause (3) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
4 Information‑only programs
(1) For the purposes of this Schedule, an information‑only program is matter the sole or dominant purpose of which is to:
(a) provide factual information, or directly‑related comment, about any of a wide range of matters, including but not limited to any of the following:
(i) products;
(ii) services;
(iii) community activities;
(iv) domestic or household matters;
(v) private recreational pursuits or hobbies;
(vi) legal rights, obligations or responsibilities;
(vii) first aid, health or safety matters;
(viii) emergencies or natural disasters;
(ix) rural matters;
(x) travel matters;
(xi) crime prevention matters; or
(b) enable and/or facilitate the carrying out and/or completion of transactions;
or both, where there is not a significant emphasis on dramatic impact or entertainment.
(2) Subclause (1) has effect subject to subclauses (3) and (4).
ACMA determinations
(3) The ACMA may make a written determination providing that, for the purposes of this Schedule, specified matter is taken to be an information‑only program.
(4) The ACMA may make a written determination providing that, for the purposes of this Schedule, specified matter is taken not to be an information‑only program.
(5) A determination under subclause (3) or (4) has effect accordingly.
(6) A determination under subclause (3) or (4) is to be an instrument of a legislative character.
(7) A determination under subclause (3) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
Definitions
(8) In this clause:
community activity means:
(a) a meeting, event, performance or other activity that can be attended by:
(i) the public; or
(ii) a section of the public; or
(iii) members of a particular club, society or organisation; or
(b) the activity of visiting an institution, a tourist attraction or other place;
whether on payment of a charge or otherwise.
product includes real property.
services means any services, benefits, rights, privileges or facilities that are capable of being provided, granted or conferred:
(a) in trade or commerce; or
(b) by a government or government authority; or
(c) in any other way.
transactions includes:
(a) commercial transactions; and
(b) banking transactions; and
(c) insurance transactions; and
(d) dealings about employment matters; and
(e) dealings with governments and government authorities.
5 Foreign‑language news or current affairs programs
(1) For the purposes of this Schedule, a foreign‑language news or current affairs program means a news or current affairs program that is wholly in a language other than English.
(2) For the purposes of subclause (1), disregard minor and infrequent uses of the English language.
(3) For the purposes of subclause (1), disregard any English language subtitles or captioning.
6 Datacasting content is taken not to be a television program or a radio program etc.
For the purposes of this Act (other than Divisions 1 and 2 of Part 3 of this Schedule) and any other law of the Commonwealth (other than the Tobacco Advertising Prohibition Act 1992), if a datacasting service is provided under, and in accordance with the conditions of, a datacasting licence:
(a) any matter provided on that service is taken not to be a television program or a radio program; and
(b) any matter provided on that service is taken not to be broadcast or televised; and
(c) that service is taken not to be a broadcasting service, a television service or a radio service.
Part 2—Datacasting licences
7 Allocation of datacasting licence
(1) The ACMA may allocate a datacasting licence to a person, on written application by the person.
(2) Applications must:
(a) be in accordance with a form approved in writing by the ACMA; and
(b) be accompanied by the application fee determined in writing by the ACMA.
(3) An application under subsection (1) may be expressed to be an application for a restricted datacasting licence.
8 When datacasting licence must not be allocated
(1) A datacasting licence is not to be allocated to an applicant if:
(a) the applicant is not a qualified entity; or
(b) the ACMA decides that subclause 9(1) applies to the applicant.
(2) The ACMA may refuse to allocate a datacasting licence to an applicant if a datacasting licence held by the applicant, or by a related body corporate of the applicant, was cancelled at any time during the previous 12 months.
(3) Paragraph (1)(b) does not require the ACMA to consider the application of clause 9 in relation to an applicant before allocating a licence to the applicant.
9 Unsuitable applicant
(1) The ACMA may, if it is satisfied that allowing a particular person to provide a datacasting service under a datacasting 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 subclause applies to the person.
(2) In deciding whether such a risk exists, the ACMA is to take into account:
(a) the business record of the person; and
(b) the person’s record in situations requiring trust and candour; and
(c) the business record of each person who would be, if a datacasting licence were allocated to the first‑mentioned person, 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 first‑mentioned person, 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 first‑mentioned person; or
(ii) a person referred to in paragraph (c) or (d).
(3) This clause 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).
10 Transfer of datacasting licences
(1) A datacasting licensee may transfer the licence to another qualified entity.
(2) A transferee of a datacasting licence must, within 7 days after the transfer, notify the ACMA of the transfer.
Penalty: 50 penalty units.
(2A) Subclause (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A notification must be in accordance with a form approved in writing by the ACMA.
11 Surrender of datacasting licences
A datacasting licensee may, by written notice given to the ACMA, surrender the licence.
12 ACMA to maintain Register of datacasting licences that are not restricted datacasting licences
(1) The ACMA is to maintain a Register in which the ACMA includes:
(a) particulars of datacasting licences (other than restricted datacasting licences); and
(b) such information about transmitter licences as the ACMA determines.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
12A ACMA to maintain Register of restricted datacasting licences
(1) The ACMA is to maintain a Register in which the ACMA includes particulars of restricted datacasting licences.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
Part 3—Conditions of datacasting licences
Division 1—Genre conditions
13 Category A television programs
(1) For the purposes of this Division, each of the following television programs is a category A television program:
(a) a drama program;
(c) a sports program;
(d) a music program;
(e) an infotainment or lifestyle program;
(f) a documentary program;
(g) a “reality television” program;
(h) a children’s entertainment program;
(i) a light entertainment or variety program;
(j) a compilation program;
(k) a quiz or games program;
(l) a comedy program;
(m) a program that consists of a combination of any or all of the above programs.
(2) Subclause (1) has effect subject to subclauses (3), (4) and (5).
(3) For the purposes of this Division, neither of the following television programs is a category A television program:
(a) an information‑only program;
(b) an educational program.
ACMA genre determinations
(4) The ACMA may make a written determination providing that, for the purposes of this Division, a specified television program or specified matter is taken to be a category A television program covered by a specified paragraph of subclause (1).
(5) The ACMA may make a written determination providing that, for the purposes of this Division, a specified television program or specified matter is taken not to be a category A television program covered by a specified paragraph of subclause (1).
(6) A determination under subclause (4) or (5) has effect accordingly.
(7) A determination under subclause (4) or (5) is to be an instrument of a legislative character.
(8) A determination under subclause (4) or (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
14 Condition relating to category A television programs
(1) Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial television broadcasting service, would be:
(a) a category A television program; or
(b) an extract from a category A television program.
(2) The condition set out in subclause (1) does not prevent the licensee from transmitting an extract from a category A television program, so long as:
(a) the extract is not longer than 10 minutes; and
(c) the extract is not combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program; and
(d) having regard to:
(i) the nature of the extract; and
(ii) the circumstances in which the extract is provided;
it would be concluded that the licensee did not intend that the extract be combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program.
(3) A reference in subclause (2) to a category A television program is a reference to matter that is covered by subclause (1) because of paragraph (1)(a).
(4) A reference in subclause (2) to an extract from a category A television program is a reference to matter that is covered by subclause (1) because of paragraph (1)(b).
(5) If, because of subclause (2) of this clause, a datacasting licensee can transmit matter without breaching the condition set out in subclause (1) of this clause, the condition set out in subclause 16(1) does not prevent the licensee from transmitting that matter.
15 Category B television programs
(1) For the purposes of this Division, each of the following television programs is a category B television program:
(a) a news or current affairs program;
(b) a financial, market or business information bulletin;
(c) a weather bulletin;
(d) a bulletin or program that consists of a combination of any or all of the above bulletins or programs.
(2) Subclause (1) has effect subject to subclauses (3), (4) and (5).
(3) For the purposes of this Division, none of the following television programs is a category B television program:
(a) an information‑only program;
(b) an educational program;
(c) a foreign‑language news or current affairs program.
ACMA genre determinations
(4) The ACMA may make a written determination providing that, for the purposes of this Division, a specified television program or specified matter is taken to be a category B television program covered by a specified paragraph of subclause (1).
(5) The ACMA may make a written determination providing that, for the purposes of this Division, a specified television program or specified matter is taken not to be a category B television program covered by a specified paragraph of subclause (1).
(6) A determination under subclause (4) or (5) has effect accordingly.
(7) A determination under subclause (4) or (5) is to be an instrument of a legislative character.
(8) A determination under subclause (4) or (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
16 Condition relating to category B television programs
(1) Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial television broadcasting service, would be:
(a) a category B television program; or
(b) an extract from a category B television program.
(2) The condition set out in subclause (1) does not prevent the licensee from transmitting a bulletin, or program, (whether presenter‑based or not), so long as:
(a) the bulletin or program is not longer than 10 minutes; and
(b) if:
(i) an earlier bulletin or program covered by subclause (1) was transmitted by the licensee; and
(ii) the content of the first‑mentioned bulletin or program differs in any respect from the content of the earlier bulletin or program;
the interval between the start of the transmission of the earlier bulletin or program and the start of the transmission of the first‑mentioned bulletin or program is at least 30 minutes; and
(c) the bulletin or program is not combined with one or more other bulletins or programs in such a way that the bulletins or programs together constitute a bulletin or program longer than 10 minutes; and
(d) having regard to:
(i) the nature of the bulletin or program; and
(ii) the circumstances in which the bulletin or program is provided;
it would be concluded that the licensee did not intend that the bulletin or program be combined with one or more other bulletins or programs in such a way that the bulletins or programs together constitute a bulletin or program longer than 10 minutes.
(3) The condition set out in subclause (1) does not prevent the licensee from transmitting a bulletin or program, so long as:
(a) the bulletin or program is not a presenter‑based bulletin or program; and
(b) one of the following applies:
(i) the bulletin or program consists of a single item of news (including a single item of sports news);
(ii) the bulletin or program is a financial, market or business information bulletin or program that deals with a single topic;
(iia) the bulletin or program is a compilation of items, the subject of which is the same or directly related, and is not longer than 10 minutes;
(iii) the bulletin or program is a weather bulletin or program; and
(c) the bulletin or program can only be accessed by an end‑user who makes a selection from an on‑screen menu.
(4) In this clause:
presenter‑based bulletin or program means a bulletin or program that consists of, or includes, a combination of:
(a) introductory or closing segments, or both, spoken by a host, or an anchor presenter, who is visible on the screen; and
(b) video images (whether or not with accompanying sound).
(5) If, because of subclause (2) or (3) of this clause, a datacasting licensee can transmit matter without breaching the condition set out in subclause (1) of this clause, the condition set out in subclause 14(1) does not prevent the licensee from transmitting that matter.
17 Genre conditions do not apply to Parliamentary proceedings etc.
The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from transmitting live matter that consists of:
(a) the proceedings of, or the proceedings of a committee of, a Parliament; or
(b) the proceedings of a court or tribunal in Australia; or
(c) the proceedings of an official inquiry or Royal Commission in Australia; or
(d) a hearing conducted by a body established for a public purpose by a law of the Commonwealth or of a State or Territory.
18 Genre conditions do not apply to matter that consists of no more than text or still visual images etc.
(1) The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from transmitting matter that consists of no more than:
(a) text; or
(b) text accompanied by associated sounds; or
(c) still visual images; or
(d) still visual images accompanied by associated sounds; or
(e) any combination of matter covered by the above paragraphs; or
(f) any combination of:
(i) matter that is covered by any of the above paragraphs (the basic matter); and
(ii) animated images (with or without associated sounds);
where:
(iii) having regard to the substance of the animated images, it would be concluded that the animated images are ancillary or incidental to the basic matter; or
(iv) the animated images consist of advertising or sponsorship material.
(2) In determining the meaning of the expressions television or television program, when used in a provision of this Act, subclause (1) is to be disregarded.
18A Genre conditions do not apply to advertising or sponsorship material
The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from transmitting advertising or sponsorship material.
19 Genre conditions do not apply to interactive computer games
(1) The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from providing an interactive computer game.
(2) In determining the meaning of the expressions television or television program, when used in a provision of this Act, subclause (1) is to be disregarded.
20 Genre conditions do not apply to internet carriage services or ordinary email
(1) The conditions set out in clauses 14 and 16 do not apply to:
(a) the transmission of so much of a datacasting service as consists of an internet carriage service (other than a declared internet carriage service); or
(b) the transmission of ordinary email.
(2) In determining the meaning of the expressions television or television program, when used in a provision of this Act, subclause (1) is to be disregarded.
20AA Genre conditions do not apply to certain content copied from the internet
(1) The conditions set out in clauses 14 and 16 do not apply to the transmission of matter if:
(a) the matter is content that has been copied from the internet; and
(b) the content is selected by the datacasting licensee concerned; and
(c) there is in force an exemption order under subclause 27A(1) in relation to the transmission of the matter.
(2) In determining the meaning of the expressions television or television program, when used in a provision of this Act, subclause (1) is to be disregarded.
Division 2—Audio content condition
21 Audio content condition
(1) Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial radio broadcasting service, would be a designated radio program.
Designated radio program
(2) For the purposes of this clause, a designated radio program is a radio program other than:
(a) an information‑only program; or
(b) an educational program; or
(c) a foreign‑language news or current affairs program.
(3) Subclause (2) has effect subject to subclauses (4) and (5).
ACMA determinations
(4) The ACMA may make a written determination providing that, for the purposes of this clause, a specified radio program or specified matter is taken to be a designated radio program.
(5) The ACMA may make a written determination providing that, for the purposes of this clause, a specified radio program or specified matter is taken not to be a designated radio program.
(6) A determination under subclause (4) or (5) has effect accordingly.
(7) A determination under subclause (4) or (5) is to be an instrument of a legislative character.
(8) A determination under subclause (4) or (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
Condition does not apply to incidental or background audio content
(8A) The condition set out in subclause (1) does not apply to the transmission of audio content that is incidental to, or provided as background to, matter displayed on the screen.
Condition does not apply to internet carriage services
(9) The condition set out in subclause (1) does not apply to the transmission of so much of a datacasting service as consists of an internet carriage service (other than a declared internet carriage service).
Condition does not apply to certain content copied from the internet
(10) The condition set out in subclause (1) does not apply to the transmission of matter if:
(a) the matter is content that has been copied from the internet; and
(b) the content is selected by the datacasting licensee concerned; and
(c) there is in force an exemption order under subclause 27A(1) in relation to the transmission of the matter.
22 Audio content condition does not apply to Parliamentary proceedings etc.
The condition set out in clause 21 does not prevent a datacasting licensee from transmitting live audio content that consists of:
(a) the proceedings of, or the proceedings of a committee of, a Parliament; or
(b) the proceedings of a court or tribunal in Australia; or
(c) the proceedings of an official inquiry or Royal Commission in Australia; or
(d) a hearing conducted by a body established for a public purpose by a law of the Commonwealth or of a State or Territory.
23 Audio content condition does not apply to matter that consists of no more than text or still visual images etc.
(1) The condition set out in clause 21 does not prevent a datacasting licensee from transmitting matter that consists of no more than:
(a) text; or
(b) text accompanied by associated sounds; or
(c) still visual images; or
(d) still visual images accompanied by associated sounds; or
(e) any combination of matter covered by the above paragraphs; or
(f) any combination of:
(i) matter that is covered by any of the above paragraphs (the basic matter); and
(ii) animated images (with or without associated sounds);
where:
(iii) having regard to the substance of the animated images, it would be concluded that the animated images are ancillary or incidental to the basic matter; or
(iv) the animated images consist of advertising or sponsorship material.
(2) In determining the meaning of the expressions radio or radio program, when used in a provision of this Act, subclause (1) is to be disregarded.
23A Audio content condition does not apply to advertising or sponsorship material
The condition set out in clause 21 does not prevent a datacasting licensee from transmitting advertising or sponsorship material.
Division 2A—Genre conditions: anti‑avoidance
23B Anti‑avoidance—declared internet carriage services
(1) If:
(a) the whole or a part of a datacasting service provided under a datacasting licence consists of an internet carriage service; and
(b) one or more persons enter into, begin to carry out, or carry out, a scheme; and
(c) the ACMA is of the opinion that the person, or any of the persons, who entered into, began to carry out, or carried out, the scheme did so for the sole or dominant purpose of avoiding the application to the licensee of Division 1 or 2;
the ACMA may, by writing, determine that, for the purposes of the application of this Schedule to the licensee, the internet carriage service is a declared internet carriage service.
(2) The person, or any of the persons, referred to in paragraphs (1)(b) and (c) may be the licensee.
(3) A determination under subclause (1) has effect accordingly.
(4) In this clause:
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; or
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether there are 2 or more parties or only one party involved.
Division 3—Other conditions
24 General conditions
(1) Each datacasting licence is subject to the following conditions:
(a) the licensee will comply with the requirements of clauses 3, 3A, 4, 5 and 6 of Schedule 2 (as modified by subclause (4) of this clause);
(b) the licensee will not, in contravention of the Tobacco Advertising Prohibition Act 1992, transmit a tobacco advertisement within the meaning of that Act;
(c) the licensee will comply with standards applicable to the licence under clause 31;
(ca) if the licence is not a restricted datacasting licence—the licensee will comply with any standards under section 130A (which deals with technical standards for digital transmission);
(d) the licensee will not use the datacasting service in the commission of an offence against another Act or a law of a State or Territory;
(e) the licensee will not transmit datacasting content that has been classified as RC or X 18+ by the Classification Board;
(f) the licensee will not transmit datacasting content that has been classified R 18+ by the Classification Board unless:
(i) the content has been modified as mentioned in paragraph 28(4)(b); or
(ii) access to the program is subject to a restricted access system (within the meaning of clause 27);
(g) the licensee will comply with subsection 130V(1) (which deals with industry standards);
(h) if the whole or a part of the datacasting service consists of an internet carriage service—the licensee will comply with an online provider rule (within the meaning of Schedule 5) that is applicable to the licensee in relation to the internet carriage service;
(i) if the licence is not a restricted datacasting licence—the licensee will not use the part of the radiofrequency spectrum covered by paragraph (b) of the definition of broadcasting services bands in subsection 6(1) to provide a datacasting service under the licence.
(2) The conditions set out in paragraphs (1)(a), (c), (e) and (f) do not apply in relation to:
(a) the transmission of so much of a datacasting service as consists of an internet carriage service; or
(b) the transmission of ordinary email.
(3) The condition set out in paragraph (1)(b) does not apply in relation to the transmission of ordinary email.
(4) Clauses 3, 3A, 4, 5 and 6 of Schedule 2 apply to datacasting services provided under datacasting licences in a corresponding way to the way in which those clauses apply to broadcasting services, and, in particular, those clauses have effect as if:
(a) a reference in those clauses to a person providing broadcasting services under a class licence included a reference to a person who is a datacasting licensee; and
(b) a reference in those clauses to a broadcasting service included a reference to a datacasting service; and
(c) a reference in those clauses to broadcast included a reference to provide on a datacasting service; and
(d) subclause 4(2) of Schedule 2 were not applicable to political matter provided under a datacasting licence, where the political matter consists of no more than:
(i) text; or
(ii) still visual images; or
(iii) any combination of matter covered by the above subparagraphs; and
(e) clause 4 of Schedule 2 also provided that, if a datacasting licensee provides on a datacasting service, at the request of another person, political matter that consists of no more than:
(i) text; or
(ii) still visual images; or
(iii) any combination of matter covered by the above subparagraphs;
the licensee must also cause to be displayed to end‑users the required particulars in relation to the political matter in a form approved in writing by the ACMA.
(5) Subclause (4) does not apply to:
(a) the transmission of so much of a datacasting service as consists of an internet carriage service; or
(b) the transmission of ordinary email.
24A Special conditions for restricted datacasting licences
Each restricted datacasting licence is subject to the following conditions:
(a) the datacasting content provided under the licence will be transmitted using a digital modulation technique;
(b) if a form of datacasting content is specified in a legislative instrument made by the Minister—the licensee will not provide datacasting content in that form;
(c) the licensee will comply with any standards under section 130AA (which deals with technical standards for digital transmission).
25 Suitability condition
(1) Each datacasting licence is subject to the condition that the licensee will remain a suitable licensee.
(2) For the purposes of this clause, a person is a suitable licensee if the ACMA has not decided that subclause (3) applies to the person.
(3) The ACMA may, if it is satisfied that allowing a particular person to provide, or continue to provide, datacasting services under a datacasting licence would lead to a significant risk of:
(a) an offence against this Act or the regulations being committed; or
(b) a breach of the conditions of the licence occurring;
decide that this subclause applies to the person.
(4) In deciding whether such a risk exists, the ACMA is to take into account:
(a) the business record of the person; and
(b) the person’s record in situations requiring trust and candour; and
(c) the business record of each person who is 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 first‑mentioned person, or a person referred to in paragraph (c) or (d), has been convicted of an offence against this Act or the regulations.
(5) This clause 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).
26 Additional conditions imposed by the ACMA
(1) The ACMA may, by written notice given to a datacasting licensee:
(a) impose an additional condition on the licence; or
(b) vary or revoke a condition of the licence imposed under this clause.
(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) make the proposed changes available on the internet.
(3) Action taken under subclause (1) must not be inconsistent with conditions set out in:
(a) clause 14; or
(b) clause 16; or
(c) clause 21; or
(d) clause 24; or
(e) clause 25.
(4) Conditions of datacasting licences varied or imposed by the ACMA must be relevant to the datacasting services to which those licences relate.
(5) Without limiting the range of conditions that may be imposed, the ACMA may impose a condition on a datacasting 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.
ACMA to maintain Register of conditions
(6) The ACMA is to maintain a register in which it includes particulars of:
(a) conditions imposed under this clause; and
(b) variations of conditions under this clause; and
(c) revocations of conditions under this clause.
(7) The Register may be maintained by electronic means.
(8) The Register is to be made available for inspection on the internet.
27 Restricted access system
(1) The ACMA may, by written instrument, declare that a specified access‑control system is a restricted access system for the purposes of this Division. A declaration under this subclause has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.
(2) In making an instrument under subclause (1), the ACMA must have regard to:
(a) the objective of protecting children from exposure to matter that is unsuitable for children; and
(b) such other matters (if any) as the ACMA considers relevant.
(3) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Division 4—Exemption orders for content copied from the internet
27A Exemption orders in relation to content copied from the internet
(1) If the ACMA is satisfied that:
(a) matter is proposed to be transmitted by a datacasting licensee; and
(b) the matter is content that is proposed to be copied from the internet; and
(c) the content is proposed to be selected by the datacasting licensee; and
(d) if it were assumed that clause 20AA and subclause 21(10) had not been enacted:
(i) any breach of the conditions set out in clauses 14 and 16 and subclause 21(1) that would arise from the transmission of the matter would be of a minor, infrequent or incidental nature; or
(ii) the transmission of the matter would not be contrary to the purpose of clauses 14, 16 and 21;
the ACMA may, by writing, make an exemption order in relation to the transmission of the matter.
(2) If the ACMA receives a request from a datacasting licensee to make an exemption order in relation to the transmission of matter by the licensee, the ACMA must use its best endeavours to make that decision within 28 days after the request was made.
Part 4—Codes of practice
28 Development of codes of practice
(1) The Parliament intends that:
(a) a group that the ACMA is satisfied represents datacasting licensees should develop codes of practice that are to be applicable to the datacasting operations of datacasting licensees; and
(b) those codes of practice should be developed:
(i) in consultation with the ACMA; and
(ii) taking account of any relevant research conducted by the ACMA.
Content of codes of practice
(2) Codes of practice may relate to:
(a) preventing the transmission of matter that, in accordance with community standards, is not suitable to be transmitted by datacasting licensees; and
(b) methods of ensuring that the protection of children from exposure to datacasting content which may be harmful to them is a high priority; and
(c) methods of classifying datacasting content that reflect community standards; and
(d) promoting accuracy and fairness in datacasting content that consists of news or current affairs; and
(e) preventing the transmission of datacasting content that:
(i) simulates news or events in a way that misleads or alarms end‑users; or
(ii) depicts the actual process of putting a person into a hypnotic state; or
(iii) is designed to induce a hypnotic state in end‑users; or
(iv) uses or involves the process known as subliminal perception or any other technique that attempts to convey information to end‑users by transmitting messages below or near the threshold of normal awareness; and
(f) datacasting content that consists of:
(i) advertising; or
(ii) sponsorship announcements; and
(g) methods of:
(i) handling complaints from the public about datacasting content or compliance with codes of practice; and
(ii) reporting to the ACMA on complaints so made; and
(h) in a case where there are customers of datacasting licensees—dealings with those customers, including methods of billing, fault repair, privacy and credit management; and
(i) such other matters relating to datacasting content as are of concern to the community.
Classification etc.
(3) In developing codes of practice relating to matters referred to in paragraphs (2)(a) and (c), community attitudes to the following matters are to be taken into account:
(a) the portrayal in datacasting content of physical and psychological violence;
(b) the portrayal in datacasting content of sexual conduct and nudity;
(c) the use in datacasting content of offensive language;
(d) the portrayal in datacasting content of the use of drugs, including alcohol and tobacco;
(e) the portrayal in datacasting content of matter that is likely to incite or perpetuate hatred against, or vilifies, any person or group on the basis of ethnicity, nationality, race, gender, sexual orientation, age, religion or physical or mental disability;
(f) such other matters relating to datacasting content as are of concern to the community.
(4) In developing codes of practice referred to in paragraph (2)(a), (b) or (c), the group that the ACMA is satisfied represents datacasting licensees must ensure that:
(a) for the purpose of classifying films—those codes apply the film classification system administered by the Classification Board; and
(b) those codes provide for methods of modifying films having particular classifications under that system so that the films are suitable to be transmitted; and
(c) those codes provide for the provision of advice to consumers on the reasons for films receiving a particular classification; and
(d) for the purpose of classifying interactive computer games—those codes apply the computer games classification system administered by the Classification Board; and
(e) those codes provide for the provision of advice to consumers on the reasons for interactive computer games receiving a particular classification; and
(f) for the purpose of classifying content (other than films or interactive computer games)—those codes apply the film classification system administered by the Classification Board in a corresponding way to the way in which that system applies to films; and
(g) those codes provide for methods of modifying content (other than films or interactive computer games) having particular classifications under that system (as correspondingly applied) so that the content is suitable to be transmitted; and
(h) those codes provide for the provision of advice to consumers on the reasons for content (other than films or interactive computer games) receiving a particular classification.
(5) In developing codes of practice referred to in paragraph (2)(a) or (b), the group that the ACMA is satisfied represents datacasting licensees must ensure that films classified as “M” or “MA 15+” do not portray material that goes beyond the previous “AO” classification criteria.
Registration of codes of practice
(6) If:
(a) the group that the ACMA is satisfied represents datacasting licensees develops a code of practice to be observed in the conduct of the datacasting operations of those licensees; and
(b) the ACMA is satisfied that:
(i) the code of practice provides appropriate community safeguards for the matters covered by the code; and
(ii) the code is endorsed by a majority of datacasting licensees; and
(iii) members of the public have been given an adequate opportunity to comment on the code;
the ACMA must include that code in the Register of codes of practice.
Interactive computer game
(7) In this clause:
interactive computer game includes a computer game within the meaning of the Classification (Publications, Films and Computer Games) Act 1995.
30 ACMA to maintain Register of codes of practice
(1) The ACMA is to maintain a Register in which it includes all codes of practice registered under clause 28.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
31 ACMA may determine standards where codes of practice fail or where no code of practice developed
(1) If:
(a) the ACMA is satisfied that there is convincing evidence that a code of practice registered under clause 28 is not operating to provide appropriate community safeguards for a matter referred to in subclause 28(2) in relation to the datacasting operations of datacasting licensees; and
(b) the ACMA is satisfied that it should determine a standard in relation to that matter;
the ACMA must, in writing, determine a standard in relation to that matter.
(2) If:
(a) no code of practice has been registered under clause 28 for a matter referred to in subclause 28(2); and
(b) the ACMA is satisfied that it should determine a standard in relation to that matter;
the ACMA must, by notice in writing, determine a standard in relation to that matter.
(3) A standard determined under this clause is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
32 Consultation on standards
The ACMA must, before determining, varying or revoking a standard, seek public comment on the proposed standard or the variation or revocation.
33 Notification of determination or variation or revocation of standards
If the ACMA determines or varies or revokes a standard, the ACMA must publish in the Gazette a notice stating:
(a) that the standard has been determined, varied or revoked; and
(b) the places where copies of the standard or of the variation or revocation can be purchased.
34 Limitation of ACMA’s power in relation to standards
(1) The ACMA must not determine a standard that requires that, before datacasting content is transmitted, the datacasting content, or a sample of the datacasting content, be approved by the ACMA or by a person or body appointed by the ACMA.
(2) However, the ACMA may determine such a standard in relation to datacasting content for children.
35 This Part does not apply to internet carriage services or ordinary email
This Part does not apply to:
(a) the transmission of so much of a datacasting service as consists of an internet carriage service; or
(b) the transmission of ordinary email.
35A This Part does not apply to the ABC or SBS
For the purposes of this Part, the Australian Broadcasting Corporation and the Special Broadcasting Service Corporation are taken not to be datacasting licensees.
Note: If the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation is otherwise a datacasting licensee, it is a duty of the Board of the Corporation to develop a code of practice that relates to the service provided under the licence. See paragraph 8(1)(e) of the Australian Broadcasting Corporation Act 1983 and paragraph 10(1)(j) of the Special Broadcasting Service Act 1991.
Part 5—Complaints to the ACMA about datacasting services
36 Complaints about offences or breach of licence conditions
(1) If a person believes that a datacasting licensee has:
(a) committed an offence against this Act or the regulations; or
(b) breached a condition of the datacasting licence;
the person may make a complaint to the ACMA about the matter.
(2) If a person believes that another person is providing a designated datacasting service without a datacasting licence that authorises the provision of that service, the first‑mentioned person may make a complaint to the ACMA about the matter.
37 Complaints under codes of practice
(1) If:
(a) a person has made a complaint to a datacasting licensee about a matter relating to:
(i) datacasting content; or
(ii) compliance with a code of practice that applies to the datacasting operations of datacasting licensees and that is included in the Register of codes of practice; and
(b) if there is a relevant code of practice relating to the handling of complaints of that kind—the complaint was made in accordance with that code of practice; and
(c) either:
(i) the person has not received a response within 60 days after making the complaint; or
(ii) the person has received a response within that period but considers that response to be inadequate;
the person may make a complaint to the ACMA about the matter.
(2) This clause does not apply to:
(a) the transmission of so much of a datacasting service as consists of an internet carriage service; or
(b) the transmission of ordinary email.
(3) Also, this clause does not apply if the datacasting licensee is the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
Note: Sections 150 to 153 deal with complaints about a datacasting service provided by the Australian Broadcasting Corporation or the Special Broadcasting Service Corporation.
38 Investigation of complaints by the ACMA
The ACMA may investigate the complaint if the ACMA thinks that it is desirable to do so.
Part 6—Control of datacasting transmitter licences
41 Datacasting transmitter licences not to be controlled by ABC or SBS
(1) The Australian Broadcasting Corporation must not be in a position to exercise control of a datacasting transmitter licence.
(2) The Special Broadcasting Service Corporation must not be in a position to exercise control of a datacasting transmitter licence.
(3) Subclauses (1) and (2) do 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.
Part 7—Nominated datacaster declarations
42 Object of this Part
The object of this Part is to provide for the making of declarations (nominated datacaster declarations) that allow the following licences to be held by different persons:
(a) a datacasting licence that authorises the provision of a datacasting service;
(b) a datacasting transmitter licence for a radiocommunications transmitter that is for use for transmitting the datacasting service.
43 Datacasting transmitter licence
A reference in this Part to a datacasting transmitter licence does not include a reference to an authorisation under section 114 of the Radiocommunications Act 1992.
44 Applications for nominated datacaster declarations
(1) If there is:
(a) a datacasting licence that authorises the provision of a datacasting service; and
(b) a datacasting transmitter licence for a transmitter that is intended for use for transmitting the datacasting service;
the licensee of the datacasting transmitter licence may apply to the ACMA for a nominated datacaster declaration in relation to the provision of the datacasting service under the datacasting licence.
(2) An application must be accompanied by:
(a) the application fee determined in writing by the ACMA; and
(b) the consent of the licensee of the datacasting licence.
(3) The application and consent must be:
(a) in writing; and
(b) in accordance with a form approved in writing by the ACMA.
45 Making a nominated datacaster declaration
(1) After considering the application, the ACMA must declare in writing that the provision of the datacasting service under the datacasting licence is nominated in relation to the datacasting transmitter licence if the ACMA is satisfied that:
(a) the licensee of the datacasting transmitter licence will transmit the datacasting service on behalf of the licensee of the datacasting licence; and
(b) the licensee of the datacasting transmitter licence will not be involved in the selection or provision of datacasting content to be transmitted on the datacasting service.
(2) The ACMA must give a copy of the declaration to:
(a) the applicant; and
(b) the licensee of the datacasting licence.
(3) If the ACMA refuses to make a nominated datacaster declaration, the ACMA must give written notice of the refusal to:
(a) the applicant; and
(b) the licensee of the datacasting licence.
46 Effect of nominated datacaster declaration
If:
(a) a nominated datacaster declaration is in force; and
(b) the licensee of the datacasting transmitter licence transmits the datacasting service on behalf of the licensee of the datacasting licence;
then:
(c) for the purposes of the Radiocommunications Act 1992, the licensee of the datacasting licence is taken not to operate the radiocommunications transmitter for any purpose in connection with that transmission; and
(d) for the purposes of this Act:
(i) the licensee of the datacasting licence is taken to provide the datacasting service; and
(ii) the licensee of the datacasting transmitter licence is taken not to provide the datacasting service; and
(e) for the purposes of this Act (other than Schedule 1) and the Tobacco Advertising Prohibition Act 1992, any content that is transmitted by the licensee of the datacasting transmitter licence on behalf of the licensee of the datacasting licence:
(i) is taken to be content transmitted by the licensee of the datacasting licence; and
(ii) is not taken to be content transmitted by the licensee of the datacasting transmitter licence.
47 Revocation of nominated datacaster declaration
(1) The ACMA must, by writing, revoke a nominated datacaster declaration if the ACMA is satisfied that:
(a) the licensee of the datacasting transmitter licence is not transmitting, or does not propose to transmit, the datacasting service on behalf of the licensee of the datacasting licence; or
(b) the licensee of the datacasting transmitter licence is involved, or proposes to become involved, in the selection or provision of datacasting content to be transmitted on the datacasting service.
(2) The ACMA must, by writing, revoke a nominated datacaster declaration if:
(a) the licensee of the datacasting transmitter licence; or
(b) the licensee of the datacasting licence;
gives the ACMA a written notice stating that the licensee does not consent to the continued operation of the declaration.
(3) The ACMA must give a copy of the revocation to:
(a) the licensee of the datacasting transmitter licence; and
(b) the licensee of the datacasting licence.
(4) A revocation under subclause (1) or (2) takes effect on the date specified in the revocation.
(5) The ACMA must not revoke a nominated datacaster declaration under subclause (1) unless the ACMA has first:
(a) given the licensee of the datacasting transmitter licence a written notice:
(i) setting out a proposal to revoke the declaration; and
(ii) inviting the licensee to make a submission to the ACMA on the proposal; and
(b) given the licensee of the datacasting licence a written notice:
(i) setting out a proposal to revoke the declaration; and
(ii) inviting the licensee to make a submission to the ACMA on the proposal; and
(c) considered any submission that was received under paragraph (a) or (b) within the time limit specified in the notice concerned.
(6) A time limit specified in a notice under subclause (5) must run for at least 7 days.
(7) A person must not enter into a contract or arrangement under which the person or another person is:
(a) prevented from giving a notice under subclause (2); or
(b) subject to any restriction in relation to the giving of a notice under subclause (2).
(8) A contract or arrangement entered into in contravention of subclause (7) is void.
48 Register of nominated datacaster declarations
(1) The ACMA is to maintain a register in which the ACMA includes particulars of all nominated datacaster declarations currently in force.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the internet.
Part 8—Remedies for breaches of licensing provisions
Division 1—Providing a designated datacasting service without a licence
49 Prohibition on providing a designated datacasting service without a licence
(1) A person is guilty of an offence if the person:
(a) intentionally provides a designated datacasting service; and
(b) does not have a datacasting licence to provide the service.
Penalty: 20,000 penalty units.
(2) A person who contravenes subclause (1) is guilty of 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.
(3) A person must not provide a designated datacasting service if the person does not have a datacasting licence to provide that service.
(4) Subclause (3) is a civil penalty provision.
(5) A person who contravenes subclause (3) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
Note 1: For exemptions for broadcasters, see clause 51.
Note 2: For exemptions for designated teletext services, see clause 51A.
50 Remedial directions—unlicensed datacasting services
(1) If the ACMA is satisfied that a person has breached, or is breaching, subclause 49(3), the ACMA may, by written notice given to the person, direct the person to take action directed towards ensuring that the person does not breach that subclause, or is unlikely to breach that subclause, in the future.
Note 1: For exemptions for broadcasters, see clause 51.
Note 2: For exemptions for designated teletext services, see clause 51A.
Offence
(2) A person commits an offence if:
(a) the person has been given a notice under subclause (1); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(3) A person who contravenes subclause (2) commits a separate offence in respect of each day (including a day of a conviction for the offence or any subsequent day) during which the contravention continues.
Civil penalty
(4) A person must comply with a notice under subclause (1).
(5) Subclause (4) is a civil penalty provision.
(6) A person who contravenes subclause (4) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
Definition
(7) In this clause:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
51 Exemption for broadcasting licensees etc.
(1) Clauses 49 and 50 do not apply to the provision of a broadcasting service under, and in accordance with the conditions of:
(a) a licence allocated by the ACMA under this Act (other than this Schedule); or
(b) a class licence.
(2) Clauses 49 and 50 do not apply to the provision of a national broadcasting service.
51A Exemption for designated teletext services
Clauses 49 and 50 do not apply to the provision of a designated teletext service.
Division 2—Breaches of licence conditions
52 Offence for breach of conditions
(1) A person is guilty of an offence if:
(a) the person is a datacasting licensee; and
(b) the person intentionally engages in conduct; and
(c) the person’s conduct breaches a condition of the licence set out in clause 14, 16, 21 or 24.
Penalty: 2,000 penalty units.
(1A) A person commits an offence if:
(a) the person is a restricted datacasting licensee; and
(b) the person engages in conduct; and
(c) the person’s conduct breaches a condition of the licence set out in clause 24A.
Penalty: 2,000 penalty units.
(2) A person who contravenes subclause (1) or (1A) is guilty of 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.
52A Civil penalty provision relating to breach of conditions of datacasting licences
(1) A datacasting licensee must not breach a condition of the licence set out in clause 14, 16, 21 or 24.
(1A) A restricted datacasting licensee must not breach a condition of the licence set out in clause 24A.
(2) Subclauses (1) and (1A) are civil penalty provisions.
(3) A person who contravenes subclause (1) or (1A) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
53 Remedial directions—breach of conditions
(1) If a datacasting licensee has breached, or is breaching, a condition of the licence (other than the condition set out in clause 25), the ACMA may, by written notice given to the licensee, direct the licensee to take action directed towards ensuring that the licensee does not breach the condition, or is unlikely to breach the condition, in the future.
(2) The following are examples of the kinds of direction that may be given to a licensee under subclause (1):
(a) a direction that the licensee implement effective administrative systems for monitoring compliance with a condition of the licence;
(b) a direction that the licensee implement a system designed to give the licensee’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a condition of the licence, in so far as those requirements affect the employees, agents or contractors concerned.
(3) A person is not required to comply with a notice under subclause (1) until the end of the period specified in the notice. That period must be reasonable.
(4) A person is guilty of an offence if:
(a) a person has been given a notice under subclause (1); and
(b) the person intentionally engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20,000 penalty units.
(5) A person who contravenes subclause (4) is guilty of 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.
(6) A person must comply with a notice under subclause (1).
(7) Subclause (6) is a civil penalty provision.
(8) A person who contravenes subclause (6) commits a separate contravention of that subclause in respect of each day (including a day of the making of a relevant civil penalty order or any subsequent day) during which the contravention continues.
54 Suspension and cancellation
(1) If a person who is a datacasting licensee:
(a) fails to comply with a notice under clause 53; or
(b) breaches a condition of the licence;
the ACMA may, by written notice given to the person:
(c) suspend the licence for such period, not exceeding 3 months, as is specified in the notice; or
(d) cancel the licence.
(2) If a datacasting licence is suspended because of a breach of a condition set out in clause 14, 16 or 21, the ACMA may take such action, by way of suspending one or more datacasting licences held by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a substantially similar, datacasting service is not transmitted by the licensee or the related body corporate, as the case may be, during the period of suspension.
(2A) If a restricted datacasting licence is suspended because of a breach of a condition set out in clause 24A, the ACMA may take such action, by way of suspending one or more restricted datacasting licences held by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a substantially similar, restricted datacasting service is not provided by the licensee or the related body corporate, as the case may be, during the period of suspension.
(3) If a datacasting licence is cancelled because of a breach of a condition set out in clause 14, 16 or 21, the ACMA may take such action, by way of cancelling one or more datacasting licences held by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a substantially similar, datacasting service is not transmitted by the licensee or the related body corporate, as the case may be, at a time after the cancellation.
(3A) If a restricted datacasting licence is cancelled because of a breach of a condition set out in clause 24A, the ACMA may take such action, by way of cancelling one or more restricted datacasting licences held by:
(a) the licensee; or
(b) a related body corporate of the licensee;
as the ACMA considers necessary to ensure that the same, or a substantially similar, restricted datacasting service is not provided by the licensee or the related body corporate, as the case may be, at a time after the cancellation.
(4) If the ACMA proposes to take action against a person under subclause (1), (2), (2A), (3) or (3A), the ACMA must give to the person:
(a) written notice of its intention; and
(b) a reasonable opportunity to make representations to the ACMA in relation to the proposed action.
55 Injunctions
Restraining injunctions
(1) If a person who is a datacasting licensee has engaged, is engaging or is proposing to engage, in any conduct in contravention of a condition of the licence (other than a condition set out in clause 25), the Federal Court may, on the application of the ACMA, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.
(2) If a person has engaged, is engaging or is proposing to engage, in any conduct in contravention of clause 49, the Federal Court may, on the application of the ACMA, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.
Performance injunctions
(3) If:
(a) a person who is a datacasting licensee has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is or would be a contravention of a condition of the licence (other than a condition set out in clause 25);
the Federal Court may, on the application of the ACMA, grant an injunction requiring the person to do that act or thing.
56 Federal Court’s powers relating to injunctions
Grant of interim injunction
(1) If an application is made to the Federal Court for an injunction under clause 55, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that clause.
No undertakings as to damages
(2) The Federal Court is not to require an applicant for an injunction under clause 55, as a condition of granting an interim injunction, to give any undertakings as to damages.
Discharge etc. of injunctions
(3) The Federal Court may discharge or vary an injunction granted under clause 55.
Certain limits on granting injunctions do not apply
(4) The power of the Federal Court under clause 55 to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:
(a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.
(5) The power of the Federal Court under clause 55 to grant an injunction requiring a person to do an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.
Other powers of the court unaffected
(6) The powers conferred on the Federal Court under clause 55 are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.
57 Stay of proceedings relating to additional licence conditions, remedial directions and suspension/cancellation decisions
(1) For the purposes of this clause, an eligible decision is:
(a) a decision under clause 26 to impose or vary a condition of a datacasting licence; or
(b) a decision to give a direction under clause 53 (which deals with remedial directions); or
(c) a decision to suspend or cancel a datacasting licence under clause 54.
(2) An order must not be made under paragraph 15(1)(a) or 15A(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 in relation to an eligible decision if:
(a) the order has the effect of suspending the operation of the eligible decision for more than 3 months; or
(b) the order and any previous order or orders made under the paragraph concerned have the combined effect of suspending the operation of the eligible decision for more than 3 months.
(3) An order must not be made under paragraph 15(1)(b) or 15A(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 in relation to an eligible decision if:
(a) the order has the effect of staying particular proceedings under the eligible decision for more than 3 months; or
(b) the order and any previous order or orders made under the paragraph concerned have the combined effect of staying particular proceedings under the eligible decision for more than 3 months.
(4) If:
(a) a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to an eligible decision; and
(b) an order could be made staying, or otherwise affecting the operation or implementation of, the eligible decision pending the finalisation of the application;
such an order must not be made if:
(c) the order has the effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months; or
(d) the order and any previous order or orders covered by paragraph (b) have the combined effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months.
(5) If:
(a) a person applies to the Administrative Appeals Tribunal for review of an eligible decision; and
(b) an order could be made under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 staying, or otherwise affecting the operation or implementation of, the eligible decision;
such an order must not be made if:
(c) the order has the effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months; or
(d) the order and any previous order or orders covered by paragraph (b) have the combined effect of staying, or otherwise affecting the operation or implementation of, the eligible decision for more than 3 months.
Part 9—Review of decisions
58 Review by the Administrative Appeals Tribunal
An application may be made to the Administrative Appeals Tribunal for a review of a decision set out in the second column of the table made under the provision of this Schedule set out in the third column, but such an application may only be made by the person described in the fourth column.
| Reviewable decisions |
| Item | Decision | Provision | Person who may apply |
| 1 | refusal to allocate datacasting licence | clause 7 or 8 | the applicant |
| 2 | that a person is not a suitable applicant | subclause 9(1) | the person |
| 2A | that an internet carriage service is a declared internet carriage service | subclause 23B(1) | the licensee |
| 3 | that a person is not a suitable licensee | subclause 25(3) | the licensee |
| 4 | Variation of datacasting licence conditions or imposition of new conditions | subclause 26(1) | the licensee |
| 4A | refusal to make an exemption order | clause 27B | the licensee |
| 5 | refusal to include a code of practice in the Register | subclause 28(6) | the relevant industry group |
| 6 | refusal to make a nominated datacaster declaration | clause 45 | the licensee of the datacasting transmitter licence or the licensee of the datacasting licence |
| 7 | revocation of a nominated datacaster declaration | clause 47 | the licensee of the datacasting transmitter licence or the licensee of the datacasting licence |
| 8 | to give or vary, or to refuse to revoke, a direction | clause 53 | the licensee |
| 9 | suspension or cancellation of datacasting licence | clause 54 | the licensee |
59 Notification of decisions to include notification of reasons and appeal rights
If the ACMA makes a decision that is reviewable under clause 58, the ACMA is to include in the document by which the decision is notified:
(a) a statement setting out the reasons for the decision; and
(b) a statement to the effect that an application may be made to the Administrative Appeals Tribunal for a review of the decision.
Schedule 7—Content services
Note: See section 216D.
Part 1—Introduction
1 Simplified outline
The following is a simplified outline of this Schedule:
• A person may make a complaint to the ACMA about prohibited content, or potential prohibited content, in relation to certain services.
• The ACMA may take the following action to deal with prohibited content or potential prohibited content:
(a) in the case of a hosting service—issue a take‑down notice;
(b) in the case of a live content service—issue a service‑cessation notice;
(c) in the case of a links service—issue a link‑deletion notice.
• Content (other than an eligible electronic publication) is prohibited content if:
(a) the content has been classified RC or X 18+ by the Classification Board; or
(b) the content has been classified R 18+ by the Classification Board and access to the content is not subject to a restricted access system; or
(c) the content has been classified MA 15+ by the Classification Board, access to the content is not subject to a restricted access system, the content does not consist of text and/or one or more still visual images, and the content is provided by a commercial service (other than a news service or a current affairs service); or
(d) the content has been classified MA 15+ by the Classification Board, access to the content is not subject to a restricted access system, and the content is provided by a mobile premium service.
• Content that consists of an eligible electronic publication is prohibited content if the content has been classified RC, category 2 restricted or category 1 restricted by the Classification Board.
• Generally, content is potential prohibited content if the content has not been classified by the Classification Board, but if it were to be classified, there is a substantial likelihood that the content would be prohibited content.
• Bodies and associations that represent sections of the content industry may develop industry codes.
• The ACMA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.
• The ACMA may make determinations regulating certain content service providers and hosting service providers.
Note: The classification of an eligible electronic publication is the same as the classification of the corresponding print publication—see clause 24.
2 Definitions
In this Schedule:
access includes:
(a) access that is subject to a pre‑condition (for example, the use of a password); and
(b) access by way of push technology; and
(c) access by way of a standing request.
access‑control system, in relation to content, means a system under which:
(a) persons seeking access to the content have been issued with a Personal Identification Number that provides a means of limiting access by other persons to the content; or
(b) persons seeking access to the content have been provided with some other means of limiting access by other persons to the content.
adult means an individual who is 18 or older.
adult chat service means a chat service where, having regard to any or all of the following:
(a) the name of the chat service;
(b) the way in which the chat service is advertised or promoted;
(c) the reputation of the chat service;
it would be concluded that the majority of the content accessed by end‑users of the chat service is reasonably likely to be prohibited content or potential prohibited content.
ancillary subscription television content service has the meaning given by clause 9A.
Australia, when used in a geographical sense, includes all the external Territories.
Australian connection has the meaning given by clause 3.
Australian police force means:
(a) the Australian Federal Police; or
(b) the police force of a State or Territory.
carriage service has the same meaning as in the Telecommunications Act 1997.
carriage service intermediary has the same meaning as in the Telecommunications Act 1997.
carriage service provider has the same meaning as in the Telecommunications Act 1997.
child means an individual who has not reached 18 years.
civil proceeding includes a civil action.
classification application means an application under clause 22.
Classification Board means the Classification Board established by the Classification (Publications, Films and Computer Games) Act 1995.
Classification Review Board means the Classification Review Board established by the Classification (Publications, Films and Computer Games) Act 1995.
classified means classified under this Schedule.
commercial content service means a content service that:
(a) is operated for profit or as part of a profit‑making enterprise; and
(b) is provided to the public but only on payment of a fee (whether periodical or otherwise).
commercial content service provider means a person who provides a commercial content service.
Note: See clause 5.
computer game